Opinion
09-29-2016
The PEOPLE of the State of New York, Respondent, v. Mark CASOLO, Appellant.
Sandra M. Colatosti, Albany, for appellant, and appellant pro se. P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.
Sandra M. Colatosti, Albany, for appellant, and appellant pro se.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.
Before: McCARTHY, J.P., EGAN JR., DEVINE, CLARK and AARONS, JJ.
AARONS, J.Appeal from a judgment of the County Court of Albany County (Lynch, J.), rendered March 15, 2013, convicting defendant upon his plea of guilty of the crimes of grand larceny in the second degree (five counts) and grand larceny in the third degree (seven counts).
Defendant, an investment banker, pleaded guilty to the entire consolidated indictment charging him with five counts of grand larceny in the second degree and seven counts of grand larceny in the third degree, stemming from defendant stealing money from numerous clients. No sentencing promises were made by County Court. Thereafter, the court sentenced defendant to prison terms of 5 to 15 years on each of the grand larceny in the second degree convictions and 2 ? to 7 years on each of the grand larceny in the third degree convictions, to run concurrently. Defendant also was ordered to pay restitution in the amount of $1,733,000 plus interest. Defendant appeals.
Defendant contends that his plea was unknowing and involuntary and that he should have been permitted to withdraw his plea as he was unaware that restitution would be imposed. Defendant failed to preserve this issue for our review as the record does not reflect that he made any postallocution motion (see People v. Miller, 126 A.D.3d 1233, 1234, 6 N.Y.S.3d 685 [2015], lv. denied 25 N.Y.3d 1168, 15 N.Y.S.3d 299, 36 N.E.3d 102 [2015] ), and the narrow exception to the preservation rule is not implicated (see People v. Lopez, 71 N.Y.2d 662, 665–666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ). To the extent that defendant challenges the restitution order, that issue also is not preserved for our review as defendant did not request a hearing and, at sentencing, consented to the amounts specified to each victim indicated in the order (see People v. Hall, 135 A.D.3d 1246, 1246, 23 N.Y.S.3d 725 [2016], lv. denied 27 N.Y.3d 998, 38 N.Y.S.3d 108, 59 N.E.3d 1220 [2016] ; People v. Gilmour, 61 A.D.3d 1122, 1124, 876 N.Y.S.2d 553 [2009], lv denied 12 N.Y.3d 925, 884 N.Y.S.2d 706, 912 N.E.2d 1087 [2009] ). We are unpersuaded by defendant's contention that the sentence imposed—which could have run consecutively—was so harsh and excessive so as to constitute an abuse of discretion or warrant a reduction in the interest of justice (see People v. DeDeo, 59 A.D.3d 846, 851, 874 N.Y.S.2d 291 [2009], lv. denied 12 N.Y.3d 782, 879 N.Y.S.2d 59, 906 N.E.2d 1093 [2009] ; People v. Provost, 25 A.D.3d 1016, 1017, 808 N.Y.S.2d 502 [2006], lv. denied 6 N.Y.3d 817, 812 N.Y.S.2d 456, 845 N.E.2d 1287 [2006] ). Defendant's contention, raised in his supplemental brief, that the plea was not voluntary because of alleged promises by defense counsel with regard to the sentencing concern matters outside the record and are properly the subject of a CPL article 440 motion (see People v. Trimm, 129 A.D.3d 1215, 1216, 10 N.Y.S.3d 738 [2015] ).
ORDERED that the judgment is affirmed.
McCARTHY, J.P., EGAN JR., DEVINE and CLARK, JJ., concur.