Opinion
KA 01-01619
October 1, 2002.
Appeal from a judgment of Jefferson County Court (Martusewicz, J.), entered June 25, 2001, convicting defendant upon his plea of guilty of criminal sale of a controlled substance in the fourth degree.
D.J. J.A. CIRANDO, ESQS., SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR DEFENDANT-APPELLANT.
CINDY F. INTSCHERT, DISTRICT ATTORNEY, WATERTOWN (DENNIS A. GERMAIN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., HAYES, HURLBUTT, KEHOE, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
Defendant appeals from a judgment convicting him upon his plea of guilty of criminal sale of a controlled substance in the fourth degree (Penal Law § 220.34), sentencing him to an indeterminate term of incarceration of 3 to 6 years, and ordering him to make restitution to the District Attorney's office of $550 in "buy" money. Defendant failed to preserve for our review his contention that the plea allocution was factually insufficient ( see People v. Lopez, 71 N.Y.2d 662, 665-666; see also People v. Toxey, 86 N.Y.2d 725, 726, rearg denied 86 N.Y.2d 839). In any event, defendant's contention is lacking in merit. Defendant did not raise the defense of duress during the plea colloquy, and thus County Court had no duty to make further inquiry ( see Lopez, 71 N.Y.2d at 665-666). Moreover, "since defendant pleaded guilty to a lesser crime than the one charged in the indictment, a factual basis for the plea was unnecessary" ( People v. Hall, 71 N.Y.2d 1002, 1006; see People v. Clairborne, 29 N.Y.2d 950, 951). Defendant further contends that the court erred in its Sandoval and Ventimiglia rulings and that his guilty plea was coerced by those rulings. By pleading guilty, defendant forfeited any challenge to those rulings ( see People v. Nichols, 277 A.D.2d 715, 718; People v. Graham, 261 A.D.2d 414, lv denied 93 N.Y.2d 971; People v. Kilmer, 228 A.D.2d 808, 808-809; People v. Gerber, 182 A.D.2d 252, 260-261, lv denied 80 N.Y.2d 1026). Further, by failing to move to withdraw his plea or to vacate the judgment of conviction, defendant failed to preserve for our review his contention that he was coerced into pleading guilty ( see People v. Banner, 291 A.D.2d 858; People v. Nixon, 278 A.D.2d 941, lv denied 96 N.Y.2d 786).
Defendant further contends that the court erred in fixing the amount of restitution without conducting a hearing. "To the extent defendant challenges the amount of the restitution order as lacking record support, [his] claim is not properly before this Court for review because [he] 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, citing People v. Callahan, 80 N.Y.2d 273, 281).