THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. MEDICAL TRANSPORT INC DEFENDANT APPELLANT (2017)

MEMORANDUM AND ORDER

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

Memorandum:  Defendant appeals from a judgment convicting it, upon its plea of guilty, of grand larceny in the second degree (Penal Law § 155.40[1] ).  County Court ordered defendant to pay a fine of $10,000 and $971,267.76 in restitution.  We conclude that defendant's challenge to the factual sufficiency of its plea allocution is encompassed by the valid waiver of its right to appeal (see People v. McCrea, 140 AD3d 1655, 1655, lv denied 28 NY3d 933;  People v. Oberdorf, 136 AD3d 1291, 1292, lv denied 27 NY3d 1073), and that it is unpreserved for our review in any event (see People v. Lugg, 108 AD3d 1074, 1075;  see also People v. Burney, 93 AD3d 1334, 1334;  see generally People v. Lopez, 71 N.Y.2d 662, 665).  We decline to consider defendant's challenge as a matter of discretion in the interest of justice (see CPL 470.15[3][c] ).  Defendant contends that the criminal action should be dismissed in furtherance of justice but, by pleading guilty, it has forfeited its right to raise that issue on appeal (see People v. Smith, 100 AD3d 936, 937;  People v. Guerra, 123 A.D.2d 882, 882;  see also People v. Harris, 15 AD3d 848, 848, lv denied 4 NY3d 887), and we likewise decline to consider that contention as a matter of our discretion in the interest of justice (see CPL 470.15[3][c] ).  In any event, the valid waiver by defendant of the right to appeal encompasses the contention (see People v. Frazier, 63 AD3d 1633, 1633, lv. denied 12 NY3d 925).

We reject defendant's contention that the restitution order is illegal (see Penal Law § 60.27[1];  see also § 10.00[7];  see generally General Construction Law § 37).  Defendant's further contentions that the restitution order is excessive and lacks a record basis are encompassed by the valid waiver of the right to appeal inasmuch as the restitution directive was part of the plea bargain (see People v. Short, 128 AD3d 1414, 1415, lv denied 25 NY3d 1208;  People v. King, 20 AD3d 907, 907;  see generally People v. Lopez, 6 NY3d 248, 255–256), and those contentions are not preserved for our review in any event.  Defendant waived its right to a restitution hearing in its written plea agreement (see People v. Candalaria, 128 AD3d 1414, 1414).  Moreover, no objection was raised on behalf of defendant, during the plea proceeding or at sentencing, either to the court's alleged failure to follow proper procedures in ordering restitution (see People v. Horne, 97 N.Y.2d 404, 414 n 3;  People v. Callahan, 80 N.Y.2d 273, 281), or to the specific amount of restitution ultimately directed by the court (see Horne, 97 N.Y.2d at 414 n 3;  People v. Favreau, 69 AD3d 1225, 1226;  People v. Milazo, 33 AD3d 1060, 1061, lv denied 8 NY3d 883).  In any event, we conclude that defendant's promise in its plea agreement to make restitution in the precise amount subsequently ordered by the court, in explicit agreement with the audit conducted by the People with respect to the sum stolen, furnishes an adequate record basis for the court's directive (see People v. Rodwin, 283 A.D.2d 242, 242, lv denied 96 N.Y.2d 924;  People v. Kelsky, 144 A.D.2d 386, 387, lv denied 73 N.Y.2d 787;  see generally People v. Consalvo, 89 N.Y.2d 140, 145–146).  Finally, we conclude that the amount of restitution is not excessive.

Frances E. Cafarell

Clerk of the Court