PEOPLE v. THOMPSON (2022)

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 mischief in the third degree (Penal Law § 145.05 [2]) and aggravated family offense (§ 240.75 [1]). Defendant was sentenced to, inter alia, an indeterminate term of incarceration, restitution, and a collection surcharge. By failing to move to withdraw the plea or to vacate the judgment of conviction, defendant failed to preserve for our review his contention that he did not knowingly, voluntarily, and intelligently enter the plea (see People v. Brinson, 130 A.D.3d 1493, 1493, 11 N.Y.S.3d 788 [4th Dept. 2015], lv denied 26 N.Y.3d 965, 18 N.Y.S.3d 601, 40 N.E.3d 579 [2015]). Furthermore, this case does not fall within the rare exception to the preservation requirement set forth in People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 (1988). To the extent that defendant negated an essential element of a crime to which he pleaded guilty by initially denying any intent to damage property, we note that County Court immediately conducted the requisite further inquiry to ensure that defendant's guilty plea was knowing, intelligent, and voluntary (see id. at 666-668, 529 N.Y.S.2d 465, 525 N.E.2d 5; People v. Stafford, 195 A.D.3d 1466, 1466-1467, 145 N.Y.S.3d 506 [4th Dept. 2021], lv denied 37 N.Y.3d 1029, 153 N.Y.S.3d 409, 175 N.E.3d 434 [2021]), and we conclude that “defendant's responses to the court's subsequent questions removed [any] doubt about [his] guilt” (People v. Vogt, 150 A.D.3d 1704, 1705, 54 N.Y.S.3d 259 [4th Dept. 2017] [internal quotation marks omitted]; see People v. Bonacci, 119 A.D.3d 1348, 1349, 988 N.Y.S.2d 391 [4th Dept. 2014], lv denied 24 N.Y.3d 1042, 998 N.Y.S.2d 312, 23 N.E.3d 155 [2014]).

We further conclude that the court's finding with respect to the amount of restitution is supported by the requisite preponderance of the evidence presented at the restitution hearing (see CPL 400.30 [4]). The court properly credited the victim's testimony concerning the cost to repair her car door and windshield, which was supported by an estimate and a receipt from credible repair shops (see People v. Grant, 189 A.D.3d 2112, 2114, 137 N.Y.S.3d 860 [4th Dept. 2020], lv denied 37 N.Y.3d 956, 147 N.Y.S.3d 525, 170 N.E.3d 399 [2021]; People v. Davis, 114 A.D.3d 1287, 1288, 980 N.Y.S.2d 179 [4th Dept. 2014]; People v. Francis L.M., 278 A.D.2d 919, 919-920, 718 N.Y.S.2d 669 [4th Dept. 2000], lv denied 97 N.Y.2d 754, 742 N.Y.S.2d 614, 769 N.E.2d 360 [2002]). Contrary to defendant's further contention, “ ‘[c]onsideration of defendant's ability to pay was not required because restitution was ordered as part of a nonprobationary sentence that included a period of incarceration as a significant component’ ” (People v. Willis, 105 A.D.3d 1397, 1397, 963 N.Y.S.2d 894 [4th Dept. 2013], lv denied 22 N.Y.3d 960, 977 N.Y.S.2d 190, 999 N.E.2d 555 [2013]; see People v. Knapp, 132 A.D.3d 1290, 1290, 17 N.Y.S.3d 231 [4th Dept. 2015]; see generally People v. Henry, 64 A.D.3d 804, 807, 881 N.Y.S.2d 701 [3d Dept. 2009], lv denied 13 N.Y.3d 860, 891 N.Y.S.2d 694, 920 N.E.2d 99 [2009]).

Finally, we reject defendant's contention that the court erred in imposing a collection surcharge of 10% of the amount of restitution. Penal Law § 60.27 (8) provides that a court must impose a surcharge of 5% of the amount of restitution, and may impose an additional surcharge of up to 5% “[u]pon the filing of an affidavit of the official or organization designated pursuant to [CPL 420.10 (8)] demonstrating that the actual cost of the collection and administration of restitution or reparation in a particular case exceeds five percent of the entire amount of the payment or the amount actually collected” (see People v. Kirkland, 105 A.D.3d 1337, 1338-1339, 963 N.Y.S.2d 793 [4th Dept. 2013], lv denied 21 N.Y.3d 1043, 972 N.Y.S.2d 540, 995 N.E.2d 856 [2013]) and the requisite affidavit was filed here (see People v. Robinson, 112 A.D.3d 1349, 1350, 977 N.Y.S.2d 529 [4th Dept. 2013], lv denied 23 N.Y.3d 1042, 993 N.Y.S.2d 255, 17 N.E.3d 510 [2014]).