Opinion
2013-04-26
The PEOPLE of the State of New York, Respondent, v. Rodney W. WILLIS, Jr., Defendant–Appellant.
Appeal from an order of the Genesee County Court (Robert C. Noonan, J.), rendered December 8, 2008. The order directed defendant to pay restitution. Bridget L. Field, Rochester, for Defendant–Appellant. Lawrence Friedman, District Attorney, Batavia (William G. Zickl of Counsel), for Respondent.
Appeal from an order of the Genesee County Court (Robert C. Noonan, J.), rendered December 8, 2008. The order directed defendant to pay restitution.
Bridget L. Field, Rochester, for Defendant–Appellant. Lawrence Friedman, District Attorney, Batavia (William G. Zickl of Counsel), for Respondent.
MEMORANDUM:
On appeal from an order requiring him to pay restitution in the amount of $141,750, defendant contends that County Court erred in failing to conduct a hearing on the issue of his ability to pay restitution. Defendant failed to preserve that contention for our review ( see People v. Dillon, 90 A.D.3d 1468, 1468–1469, 935 N.Y.S.2d 390,lv. denied19 N.Y.3d 1025, 953 N.Y.S.2d 558, 978 N.E.2d 110). In any event, we conclude that it lacks merit. “Consideration of defendant's ability to pay was not required because restitution was ordered as part of a nonprobationary sentence that included a period of incarceration as a significant component” ( People v. Ford, 77 A.D.3d 1176, 1177, 910 N.Y.S.2d 235,lv. denied 17 N.Y.3d 816, 929 N.Y.S.2d 805, 954 N.E.2d 96;see People v. Henry, 64 A.D.3d 804, 807, 881 N.Y.S.2d 701,lv. denied 13 N.Y.3d 860, 891 N.Y.S.2d 694, 920 N.E.2d 99). We thus reject defendant's further contention that he received ineffective assistance of counsel based on defense counsel's failure to request a hearing on defendant's ability to pay restitution. Defense counsel was not ineffective for failing to request a hearing that had no “colorable basis” ( People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698;see Ford, 77 A.D.3d at 1177, 910 N.Y.S.2d 235).
It is hereby ORDERED that the order so appealed from is unanimously affirmed.