Opinion
05-06-2016
The PEOPLE of the State of New York, Respondent, v. Jeffrey D. PAUL, also known as Jeffrey D. Lipson, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Alan Williams of Counsel), for Defendant–Appellant. Joseph V. Cardone, District Attorney, Albion (Katherine Bogan of Counsel), for Respondent.
Appeal from a judgment of the Orleans County Court (James P. Punch, J.), rendered January 27, 2014. The judgment convicted defendant, upon his plea of guilty, of criminal possession of stolen property in the fourth degree.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Alan Williams of Counsel), for Defendant–Appellant.
Joseph V. Cardone, District Attorney, Albion (Katherine Bogan of Counsel), for Respondent.
MEMORANDUM: Defendant appeals from a judgment convicting him upon his plea of guilty of criminal possession of stolen property in the fourth degree (Penal Law § 165.45 ). Even assuming, arguendo, that defendant's waiver of the right to appeal is invalid (see People v. Harris, 125 A.D.3d 1506, 1506, 2 N.Y.S.3d 309, lv. denied 26 N.Y.3d 929, 17 N.Y.S.3d 92, 38 N.E.3d 838 ), we nevertheless
conclude that none of defendant's contentions on appeal requires reversal or modification. Defendant failed to preserve for our review his challenge to the amount of restitution imposed “ inasmuch as he did not object to that amount at sentencing ..., and in any event he affirmatively waived his right to a restitution hearing” (People v. Tessitore, 101 A.D.3d 1621, 1622, 956 N.Y.S.2d 372, lv. denied 20 N.Y.3d 1104, 965 N.Y.S.2d 800, 988 N.E.2d 538 ). In addition, “[b]y failing to request a hearing on the issue whether he had the ability to pay the amount of restitution ordered by County Court, defendant failed to preserve for our review his further contention that the court failed to consider his ability to pay the restitution” (People v. Dillon, 90 A.D.3d 1468, 1468–1469, 935 N.Y.S.2d 390, lv. denied 19 N.Y.3d 1025, 953 N.Y.S.2d 558, 978 N.E.2d 110 ; see People v. Pugliese, 113 A.D.3d 1112, 1112, 978 N.Y.S.2d 552, lv. denied 23 N.Y.3d 1066, 994 N.Y.S.2d 325, 18 N.E.3d 1146 ). Moreover, although we agree with defendant that his release to parole supervision does not render his challenge to the severity of his sentence moot inasmuch as he remains under the control of the Parole Board until his sentence has terminated (see People v. Sebring, 111 A.D.3d 1346, 1347, 974 N.Y.S.2d 722, lv. denied 22 N.Y.3d 1159, 984 N.Y.S.2d 643, 7 N.E.3d 1131 ), we nevertheless conclude that his challenge is without merit.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
CENTRA, J.P., PERADOTTO, CARNI, CURRAN, and TROUTMAN, JJ., concur.