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The People of the State of New York v. Denise M. Tallman

State of New York Supreme Court, Appellate Division Third Judicial Department


February 16, 2012

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
DENISE M. TALLMAN, APPELLANT.

Appeal from a judgment of the County Court of St. Lawrence County (Rogers, J.), rendered January 19, 2010, convicting defendant upon her plea of guilty of the crime of leaving the scene of an incident without reporting.

The opinion of the court was delivered by: Kavanagh, J.

MEMORANDUM AND ORDER

Calendar Date: January 5, 2012

Before: Peters, J.P., Rose, Lahtinen, Kavanagh and Garry, JJ.

In 2005, defendant was sentenced to five years of probation and ordered to pay restitution in connection with her conviction of the crimes of welfare fraud in the third degree and offering a false instrument for filing in the first degree. In 2009, defendant was charged with violating the terms of her probation in connection with an incident wherein she struck a man on a bicycle with her motor vehicle. In addition to the probation violation arising out of this incident, defendant was charged in a two-count indictment with leaving the scene of an incident without reporting and falsely reporting an incident in the third degree. Defendant pleaded guilty to leaving the scene of an incident without reporting in full satisfaction of the indictment as well as the probation violation with the understanding that County Court would sentence her as a second felony offender to 11/2 to 3 years in prison, consider her for the Willard Drug Treatment Program, impose restitution for the injuries sustained by the victim and reduce the outstanding restitution due on defendant's prior conviction to a judgment. At sentencing, the court declined to place defendant into the Willard program and sentenced her to 11/2 to 3 years in prison, imposed restitution in the amount of $5,470.53 and reduced the outstanding restitution of $6,580 to a judgment. Shortly thereafter, the court realized that defendant could not be treated as a second felony offender under the circumstances presented and proposed to resentence her to 1 to 3 years in prison, leaving all other aspects of the sentence unchanged. Defendant declined the opportunity to withdraw her plea and agreed to the resentencing. Defendant now appeals.

We affirm. Contrary to defendant's contentions, the record reflects that County Court honored its commitment to consider defendant for the Willard program, ultimately determining that it was not appropriate in this case, and sentenced her as agreed. Moreover, defendant declined to withdraw her guilty plea when afforded the opportunity, accepting instead a more lenient sentence. Under these circumstances, defendant was clearly afforded the full benefit of her plea agreement (see generally People v Ruddy, 77 AD3d 983, 984 [2010]; People v Sheils, 288 AD2d 504, 505-506 [2001], lv denied 97 NY2d 733 [2002]).

As for restitution, we note that when asked whether defendant disagreed with the amounts requested by the victim and the St. Lawrence County Department of Social Services, defense counsel stated that she did not contest these amounts (see People v Heier, 90 AD3d 1336, 1338 [2011]; People v Planty, 85 AD3d 1317, 1318 [2011], lv denied 17 NY3d 820 [2011]). Nor did defendant raise any issue regarding restitution at the subsequent resentencing appearance. In any event, both the amounts requested by the victim and the Department of Social Services for reimbursement of the victim's medical expenses are documented in the record.

Finally, we have considered the contentions raised in defendant's pro se submission and find them to be unpersuasive.

Peters, J.P., Rose, Lahtinen and Garry, JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger Clerk of the Court

20120216

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