Opinion
107192.
05-19-2016
The PEOPLE of the State of New York, Respondent, v. Tracy J. WHITE Jr., Appellant.
Frank A. Sarat, Homer, for appellant. Weeden A. Wetmore, District Attorney, Elmira (Susan Rider–Ulacco of counsel), for respondent.
Frank A. Sarat, Homer, for appellant.
Weeden A. Wetmore, District Attorney, Elmira (Susan Rider–Ulacco of counsel), for respondent.
Before: LAHTINEN, J.P., McCARTHY, DEVINE, CLARK and MULVEY, JJ.
Opinion
MULVEY, J. Appeal from a judgment of the County Court of Chemung County (Rich Jr., J.), rendered September 19, 2014, convicting defendant upon his plea of guilty of the crimes of robbery in the second degree (four counts) and grand larceny in the third degree (three counts).
Defendant was charged by indictment with four counts of robbery in the second degree and three counts of grand larceny in the third degree. Without any promise having been made as to the sentence to be imposed, defendant pleaded guilty as charged. Following a restitution hearing, County Court sentenced defendant to an aggregate prison term of 13 years, to be followed by five years of postrelease supervision, and ordered him to pay restitution in the amount of $68,662, plus a five percent surcharge. Defendant appeals.
Initially, as the record does not reflect that he made an appropriate postallocution motion, defendant's challenge to the voluntariness of his plea is unpreserved (see People v. Richardson, 132 A.D.3d 1022, 1023, 17 N.Y.S.3d 196 [2015] ; People v. Waite, 120 A.D.3d 1446, 1447, 994 N.Y.S.2d 201 [2014] ). Moreover, the narrow exception to the preservation rule was not triggered since defendant did not make any statements during the plea allocution that cast doubt upon his guilt or otherwise called into question the voluntariness of his plea (see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ; People v. Spellicy, 123 A.D.3d 1228, 1230, 998 N.Y.S.2d 519 [2014], lv. denied 25 N.Y.3d 992, 10 N.Y.S.3d 535, 32 N.E.3d 972 [2015] ). Similarly, in the absence of an objection at the time of sentencing, defendant failed to preserve his contention that County Court considered improper factors in imposing sentence (see People v. Colome–Rodriguez, 120 A.D.3d 1525, 1525–1526, 992 N.Y.S.2d 652 [2014], lv. denied 25 N.Y.3d 1161, 15 N.Y.S.3d 293, 36 N.E.3d 96 [2015] ; People v. Rosado, 300 A.D.2d 838, 840–841, 752 N.Y.S.2d 139 [2002], lv. denied 99 N.Y.2d 619, 757 N.Y.S.2d 830, 787 N.E.2d 1176 [2003] ; People v. Anonymous, 293 A.D.2d 374, 374, 740 N.Y.S.2d 212 [2002], lv. denied 98 N.Y.2d 729, 749 N.Y.S.2d 479, 779 N.E.2d 190 [2002] ).
Lastly, defendant argues that County Court erred in ordering him to pay $19,149 in restitution to Finger Lakes Healthcare Federal Credit Union to cover the cost of hiring armed security guards for a period of roughly three months until certain physical security measures could be installed. As relevant here, County Court “may require restitution or reparation as part of the sentence imposed upon a person convicted of an offense[ ] and ... require the defendant to make restitution of the fruits of his or her offense or reparation for the actual out-of-pocket loss caused thereby” (Penal Law § 60.27[1] [emphasis added] ). The amount of restitution imposed “may be no greater than the sum necessary to compensate the victim for out-of-pocket losses” (People v. Consalvo, 89 N.Y.2d 140, 144, 651 N.Y.S.2d 963, 674 N.E.2d 672 [1996] ; see People v. Tzitzikalakis, 8 N.Y.3d 217, 220, 832 N.Y.S.2d 120, 864 N.E.2d 44 [2007] ; People v. Ayers, 45 A.D.3d 1290, 1291, 845 N.Y.S.2d 646 [2007], lv. denied 10 N.Y.3d 808, 857 N.Y.S.2d 41, 886 N.E.2d 806 [2008] ). Here, while the credit union's decision to temporarily hire security guards was likely motivated by the fact that defendant perpetrated two of his offenses against the same branch, we cannot conclude that this voluntary decision constituted an out-of-pocket loss caused by defendant's offenses (see Penal Law § 60.27[1] ; People v. Nelson, 38 A.D.3d 472, 473, 833 N.Y.S.2d 53 [2007], lv. denied 9 N.Y.3d 879, 842 N.Y.S.2d 791, 874 N.E.2d 758 [2007] ). Accordingly, the restitution award should be modified to $49,513, with a five percent surcharge of $2,475.65, for a total award of $51,988.65.
ORDERED that the judgment is modified, on the law, by reducing the amount of restitution awarded to $49,513, with a five percent surcharge of $2,475.65, and, as so modified, affirmed.
LAHTINEN, J.P., McCARTHY, DEVINE and CLARK, JJ., concur.