THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. JEFFREY PAUL ALSO KNOWN AS JEFFREY LIPSON DEFENDANT APPELLANT (2016)

MEMORANDUM AND ORDER

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 criminal possession of stolen property in the fourth degree (Penal Law § 165.45).  Even assuming, arguendo, that defendant's waiver of the right to appeal is invalid (see People v. Harris, 125 AD3d 1506, 1506, lv denied 26 NY3d 929), we nevertheless conclude that none of defendant's contentions on appeal requires reversal or modification.  Defendant failed to preserve for our review his challenge to the amount of restitution imposed “inasmuch as he did not object to that amount at sentencing ․, and in any event he affirmatively waived his right to a restitution hearing” (People v. Tessitore, 101 AD3d 1621, 1622, lv denied 20 NY3d 1104).  In addition, “[b]y failing to request a hearing on the issue whether he had the ability to pay the amount of restitution ordered by County Court, defendant failed to preserve for our review his further contention that the court failed to consider his ability to pay the restitution” (People v. Dillon, 90 AD3d 1468, 1468–1469, lv denied 19 NY3d 1025;  see People v. Pugliese, 113 AD3d 1112, 1112, lv denied 23 NY3d 1066).  Moreover, although we agree with defendant that his release to parole supervision does not render his challenge to the severity of his sentence moot inasmuch as he remains under the control of the Parole Board until his sentence has terminated (see People v. Sebring, 111 AD3d 1346, 1347, lv denied 22 NY3d 1159), we nevertheless conclude that his challenge is without merit.

Frances E. Cafarell

Clerk of the Court