Opinion
340 KA 17-01482
07-24-2020
The PEOPLE of the State of New York, Respondent, v. Marlinda NESMITH, Defendant-Appellant.
CATHERINE H. JOSH, ROCHESTER, FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
CATHERINE H. JOSH, ROCHESTER, FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CARNI, 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 her upon her plea of guilty of, inter alia, identity theft in the first degree ( Penal Law § 190.80[1] ). We affirm.
Defendant's contention that the amount of restitution ordered by Supreme Court lacks a record basis is unpreserved for our review because she did not object to the imposition of restitution at sentencing or request a hearing, and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see People v. Briggs , 169 A.D.3d 1369, 1369-1370, 91 N.Y.S.3d 648 [4th Dept. 2019], lv denied 33 N.Y.3d 974, 101 N.Y.S.3d 264, 124 N.E.3d 753 [2019] ; People v. Sapetko , 158 A.D.3d 1315, 1315-1316, 68 N.Y.S.3d 353 [4th Dept. 2018], lv denied 31 N.Y.3d 1017, 78 N.Y.S.3d 287, 102 N.E.3d 1068 [2018] ; People v. Meyer , 156 A.D.3d 1421, 1421-1422, 65 N.Y.S.3d 883 [4th Dept. 2017], lv denied 31 N.Y.3d 985, 77 N.Y.S.3d 663, 102 N.E.3d 440 [2018] ).
Defendant also contends that her plea was not knowingly, voluntarily or intelligently entered because the court did not adequately inform her at the time of the plea that she would be sentenced as a second felony offender or inform her that she could controvert her purported prior felony conviction. Defendant failed to preserve that contention for our review by moving to withdraw her plea or to vacate the judgment (see People v. Wilkes , 160 A.D.3d 1491, 1491, 76 N.Y.S.3d 342 [4th Dept. 2018], lv denied 31 N.Y.3d 1154, 83 N.Y.S.3d 436, 108 N.E.3d 510 [2018] ), and this case does not fall within the rare exception to the preservation requirement (see People v. Lopez , 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ). In any event, the record belies defendant's contention. Indeed, the record demonstrates that defendant was made aware at the plea hearing that she would be sentenced as a second felony offender, and that she had the opportunity at sentencing to deny the prior felony conviction or challenge its constitutionality, but declined to do so (see People v. Kopy , 54 A.D.3d 441, 441, 862 N.Y.S.2d 651 [3d Dept. 2008] ; see generally People v. Harris , 61 N.Y.2d 9, 20, 471 N.Y.S.2d 61, 459 N.E.2d 170 [1983] ).