Opinion
696 KA 21-00211
09-30-2022
The PEOPLE of the State of New York, Respondent, v. Brian CUATT, Defendant-Appellant.
CHARLES J. GREENBERG, AMHERST, FOR DEFENDANT-APPELLANT. MARK S. SINKIEWICZ, DISTRICT ATTORNEY, WATERLOO, FOR RESPONDENT.
CHARLES J. GREENBERG, AMHERST, FOR DEFENDANT-APPELLANT.
MARK S. SINKIEWICZ, DISTRICT ATTORNEY, WATERLOO, FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, NEMOYER, CURRAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of grand larceny in the third degree ( Penal Law § 155.35 [1] ). We affirm.
Defendant contends that his plea was not knowingly, voluntarily, or intelligently entered because he was not informed at the time of the plea proceeding that he would have to pay restitution. Where, as here, a "plea bargain d[oes] not include restitution, ... the [sentencing] court ... err[s] in awarding restitution without affording [the] defendant the opportunity to withdraw [the] plea" ( People v. Richardson , 173 A.D.3d 1859, 1861, 104 N.Y.S.3d 478 [4th Dept. 2019], lv denied 34 N.Y.3d 953, 110 N.Y.S.3d 626, 134 N.E.3d 625 [2019], reconsideration denied 34 N.Y.3d 1081, 116 N.Y.S.3d 161, 139 N.E.3d 819 [2019] ; see People v. Williams , 120 A.D.3d 721, 723, 991 N.Y.S.2d 427 [2d Dept. 2014], lv denied 25 N.Y.3d 1078, 12 N.Y.S.3d 630, 34 N.E.3d 381 [2015] ). In this case, however, County Court "properly afforded defendant the option of either withdrawing his guilty plea and proceeding to trial ... or accepting [a] proper sentence" that included restitution ( People v. D'Avolio , 176 A.D.2d 1245, 1246, 576 N.Y.S.2d 739 [4th Dept. 1991], lv denied 79 N.Y.2d 855, 580 N.Y.S.2d 727, 588 N.E.2d 762 [1992] ; see generally People v. Maliszewski , 13 N.Y.3d 756, 757, 886 N.Y.S.2d 363, 915 N.E.2d 288 [2009] ; People v. Jackson , 216 A.D.2d 950, 951, 629 N.Y.S.2d 147 [4th Dept. 1995], lv denied 86 N.Y.2d 796, 632 N.Y.S.2d 509, 656 N.E.2d 608 [1995] ). "[B]y declining to withdraw his guilty plea, [defendant] chose the latter option" ( D'Avolio , 176 A.D.2d at 1246, 576 N.Y.S.2d 739 ; see generally Maliszewski , 13 N.Y.3d at 757, 886 N.Y.S.2d 363, 915 N.E.2d 288 ; Jackson , 216 A.D.2d at 951, 629 N.Y.S.2d 147 ). Defendant's challenge to the validity of the plea on the aforementioned ground thus is not preserved for our review (see People v. Williams , 27 N.Y.3d 212, 221-222, 32 N.Y.S.3d 17, 51 N.E.3d 528 [2016] ), and we decline to exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c] ).
Defendant further contends that there is no basis in the record supporting the amount of restitution and that the court should have conducted a hearing before determining the amount thereof. That contention likewise is not preserved for our review inasmuch as defendant "did not request a hearing to determine the [proper amount of restitution] or otherwise challenge the amount of the restitution order during the sentencing proceeding" ( People v. Horne , 97 N.Y.2d 404, 414 n. 3, 740 N.Y.S.2d 675, 767 N.E.2d 132 [2002] ; see People v. Jones , 108 A.D.3d 1206, 1207, 969 N.Y.S.2d 364 [4th Dept. 2013], lv denied 22 N.Y.3d 997, 981 N.Y.S.2d 3, 3 N.E.3d 1171 [2013] ). We decline to exercise our power to review defendant's contention as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c] ). Finally, defendant contends that he is entitled to vacatur of the plea because it was induced by an alleged promise that has purportedly gone unfulfilled "[f]or reasons that are outside the record." Inasmuch as defendant's contention "involves matters outside the record on appeal[, it] must be raised via a motion pursuant to CPL 440.10" ( People v. Congdon , 204 A.D.3d 1516, 1517, 165 N.Y.S.3d 779 [4th Dept. 2022], lv denied 38 N.Y.3d 1070, 171 N.Y.S.3d 441, 191 N.E.3d 393 [2022] ; see generally People v. Bradley , 196 A.D.3d 1168, 1169, 150 N.Y.S.3d 491 [4th Dept. 2021] ; People v. Solas , 106 A.D.2d 417, 417, 482 N.Y.S.2d 343 [2d Dept. 1984] ).