People v Burns

People v Burns 2013 NY Slip Op 07309 Released on November 8, 2013 Appellate Division, Fourth Department 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.

Released on November 8, 2013
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: SCUDDER, P.J., SMITH, FAHEY, SCONIERS, AND VALENTINO, JJ.
1048 KA 12-01955

[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

v

BRADLEE E. BURNS, DEFENDANT-APPELLANT.


Appeal from a judgment of the Wyoming County Court (Mark H. Dadd, J.), rendered August 17, 2012. The judgment convicted defendant, upon his plea of guilty, of attempted assault in the second degree.


NORMAN P. EFFMAN, PUBLIC DEFENDER, WARSAW (LEAH RENE NOWOTARSKI OF COUNSEL), FOR DEFENDANT-APPELLANT.
DONALD G. O'GEEN, DISTRICT ATTORNEY, WARSAW (MARSHALL A. KELLY OF COUNSEL), FOR RESPONDENT.


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

Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of attempted assault in the second degree (Penal Law §§ 110.00, 120.05 [1]). Although "[d]efendant's challenge to the amount of restitution is not foreclosed by his waiver of the right to appeal because the amount of restitution was not included in the terms of the plea agreement" (People v Tessitore, 101 AD3d 1621, 1622, lv denied 20 NY3d 1104 [internal quotation marks omitted]; see People v Miller, 87 AD3d 1303, 1304, lv denied 18 NY3d 926), that contention is unpreserved for our review inasmuch as defendant did not object during the restitution hearing or otherwise alert County Court of his objection (see CPL 470.05 [2]; see also People v Horne, 97 NY2d 404, 414 n 3). In any event, we conclude that the People established the amount of restitution by a preponderance of the evidence, and there is no basis to disturb the restitution award (see People v Lucieer, 107 AD3d 1611, 1613; see generally CPL 400.30 [4]; People v Tzitzikalakis, 8 NY3d 217, 221).
Entered: November 8, 2013
Frances E. Cafarell
Clerk of the Court