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People v. Lanzara

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


February 6, 2009

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
KEVIN R. LANZARA, DEFENDANT-APPELLANT.

Appeal from a judgment of the Lewis County Court (Charles C. Merrell, J.), rendered January 12, 2007. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a controlled substance in the second degree.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

PRESENT: HURLBUTT, J.P., SMITH, FAHEY, PERADOTTO, AND PINE, JJ.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum

On appeal from a judgment convicting him upon his plea of guilty of criminal possession of a controlled substance in the second degree (Penal Law § 220.18 [1]), defendant contends that County Court erred in imposing a fine without conducting a hearing to determine his ability to pay. That contention is encompassed by defendant's valid waiver of the right to appeal (see generally People v Hidalgo, 91 NY2d 733, 737; People v Horton, 256 AD2d 1105, lv denied 93 NY2d 972). In any event, "appellate challenges to the procedures utilized in determining and imposing sentence are forfeited if they are not raised in a timely manner before the trial court" (People v Callahan, 80 NY2d 273, 281), and here defendant forfeited that challenge by failing to raise it before the sentencing court.

20090206

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