Opinion
205 KA 16–00717
02-09-2018
The PEOPLE of the State of New York, Respondent, v. Matthew SAPETKO, Defendant–Appellant.
CATHERINE H. JOSH, ROCHESTER, FOR DEFENDANT–APPELLANT. GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF COUNSEL), FOR RESPONDENT.
CATHERINE H. JOSH, ROCHESTER, FOR DEFENDANT–APPELLANT.
GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, CARNI, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDER
Memorandum:Defendant appeals from a judgment convicting him upon his plea of guilty of burglary in the third degree ( Penal Law § 140.20 ). Defendant's contention that the amount of the restitution ordered by County Court is not supported by the record " ‘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. Peck, 31 A.D.3d 1216, 1217, 817 N.Y.S.2d 845 [4th Dept. 2006], lv denied 9 N.Y.3d 992, 848 N.Y.S.2d 610, 878 N.E.2d 1026 [2007], quoting People v. Horne, 97 N.Y.2d 404, 414 n. 3, 740 N.Y.S.2d 675, 767 N.E.2d 132 [2002] ). Defendant further contends that his guilty plea was not knowing, intelligent and voluntary because, prior to entering his plea, he was not advised that he could challenge the constitutionality of his predicate felony conviction in a hearing before being sentenced as a second felony offender. That contention is not preserved for our review inasmuch as defendant did not move to withdraw his guilty plea or to vacate the judgment of conviction (see People v. Stokely, 49 A.D.3d 966, 967, 853 N.Y.S.2d 221 [3d Dept. 2008] ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.