People v Darryl Stuart

People v Stuart 2006 NY Slip Op 04612 [30 AD3d 1049] June 9, 2006 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 23, 2006

The People of the State of New York, Respondent, v Darryl Stuart, Appellant.

—[*1]Appeal from a judgment of the Livingston County Court (Ronald A. Cicoria, J.), rendered June 1, 2004. The judgment convicted defendant, upon his plea of guilty, of grand larceny in the third degree (two counts), grand larceny in the fourth degree (two counts) and criminal trespass in the third degree (four counts).

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of two counts each of grand larceny in the third degree (Penal Law § 155.35) and grand larceny in the fourth degree (§ 155.30 [1]), and four counts of criminal trespass in the third degree (§ 140.10 [a]). Defendant failed to preserve for our review his challenge to the amount of restitution ordered (see People v Breen, 30 AD3d 1034 [2006]; People v McCorkle, 298 AD2d 848, 848-849 [2002], lv denied 99 NY2d 561 [2002]), and we decline to exercise our power to review that challenge as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]; Breen, 30 AD3d 1034). Defendant also failed to preserve for our review his contention that County Court erred in imposing a surcharge in addition to restitution (see People v Dunn, 254 AD2d 511, 512 [1998], lv denied 92 NY2d 1031 [1998], cert denied 527 US 1024 [1999]). In any event, that contention is without merit because defendant had not made restitution at the time of sentencing (see Penal Law § 60.35 [6]; People v Wilcox, 234 AD2d 1007 [1996], lv denied 89 NY2d 989 [1997]; see also People v Cabrera, 243 AD2d 720, 721 [1997]). Present—Hurlbutt, J.P., Scudder, Martoche, Smith and Hayes, JJ.