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People v. Spossey

Supreme Court of New York, Fourth Department

June 7, 2013

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
DEBRA SPOSSEY, DEFENDANT-APPELLANT.

Appeal from a judgment of the Onondaga County Court (Anthony F. Aloi, J.), rendered January 4, 2010. The judgment convicted defendant, upon her plea of guilty, of grand larceny in the fourth degree.

FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL OF COUNSEL), FOR RESPONDENT.

PRESENT: CENTRA, J.P., FAHEY, CARNI, WHALEN, AND MARTOCHE, JJ.

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

Memorandum: Defendant appeals from a judgment convicting her, following a plea of guilty, of grand larceny in the fourth degree (Penal Law § 155.30 [1]). We agree with defendant that her waiver of the right to appeal was not knowingly, intelligently, and voluntarily entered (see People v Bradshaw, 18 N.Y.3d 257, 262; see generally People v Lopez, 6 N.Y.3d 248, 256); thus, it does not encompass defendant's contentions that the award of restitution was not based on evidence in the record and that County Court should have held a hearing with respect to the amount of restitution (cf. People v Tessitore, 101 A.D.3d 1621, 1622, lv denied ___ N.Y.3d ___). Defendant, however, failed to preserve for our review those contentions inasmuch as she did not object to the amount of restitution at sentencing, nor did she request a hearing (see id.; People v Lewis, 89 A.D.3d 1485, 1486). In any event, defendant conceded "the facts necessary to establish the amount of restitution as part of a plea allocution" (People v Consalvo, 89 N.Y.2d 140, 145) and thus waived her right to challenge the amount of restitution. Even assuming, arguendo, that defendant's contention with respect to ineffective assistance of counsel survives the guilty plea (see generally People v March, 21 A.D.3d 1393, 1393, lv denied 6 N.Y.3d 778), we further conclude that defendant was not denied effective assistance of counsel by defense counsel's failure to challenge the amount of restitution (see generally People v Ford, 86 N.Y.2d 397, 404).


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