PEOPLE v. CHRYSLER (2023)

MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (Roger D. McDonough, J.), rendered January 12, 2018 in Albany County, convicting defendant upon his plea of guilty of the crime of grand larceny in the third degree as a hate crime.

Defendant, along with others, was charged in a 31–count indictment stemming from his involvement in a 10–month–long scheme to defraud elderly individuals.  In satisfaction of the charges against him, and in exchange for a negotiated prison sentence and an order of restitution, defendant pleaded guilty to grand larceny in the third degree as a hate crime and purported to waive his right to appeal.  Pursuant to the terms of the plea agreement, defendant was thereafter sentenced, as a predicate felony offender, to a prison term of 6 to 12 years and was further ordered to pay restitution in the amount of $25,000.  Defendant appealed and this Court rejected counsel's Anders brief, withheld decision and assigned new counsel to represent defendant on the appeal (207 A.D.3d 873, 169 N.Y.S.3d 858 [3d Dept. 2022]).

We affirm.  Initially, the People concede that defendant's appeal waiver is invalid.  Nevertheless, even if it was valid, defendant's challenge to the amount of restitution awarded is not precluded as the underlying plea agreement did not specify the amount to be awarded (see People v. Ortiz, 148 A.D.3d 1291, 1292, 48 N.Y.S.3d 834 [3d Dept. 2017];  People v. Deschaine, 116 A.D.3d 1303, 1303, 984 N.Y.S.2d 246 [3d Dept. 2014], lv denied 23 N.Y.3d 1019, 992 N.Y.S.2d 802, 16 N.E.3d 1282 [2014]).  Defendant's claim that the amount of restitution awarded is unsupported by the record, however, is unpreserved for our review, as he failed to request a hearing in this regard or to object to the sum at sentencing (see People v. Ortolaza, 120 A.D.3d 843, 844, 991 N.Y.S.2d 171 [3d Dept. 2014], lv denied 25 N.Y.3d 991, 10 N.Y.S.3d 534, 32 N.E.3d 971 [2015];  People v. Miller, 117 A.D.3d 1237, 1238, 986 N.Y.S.2d 255 [3d Dept. 2014], lv denied 24 N.Y.3d 1086, 1 N.Y.S.3d 13, 25 N.E.3d 350 [2014]).

ORDERED that the judgment is affirmed.

Garry, P.J., Clark, Aarons, Reynolds Fitzgerald and Ceresia, JJ., concur.