PEOPLE v. MARVIN

Reset A A Font size: Print

The PEOPLE of the State of New York, Respondent, v. Kenneth J. MARVIN, Jr., Defendant-Appellant. (Appeal No. 1.).

Decided: December 30, 2009

PRESENT: SCUDDER, P.J., FAHEY, CARNI, AND GORSKI, JJ. D.J. & J.A. Cirando, Esqs., Syracuse (Bradley E. Keem of Counsel), for Defendant-Appellant. R. Michael Tantillo, District Attorney, Canandaigua (Jeffrey L. Taylor of Counsel), for Respondent.

In these consolidated appeals, defendant appeals from judgments convicting him upon his pleas of guilty of, inter alia, two counts of burglary in the second degree (Penal Law § 140.25[2] ). Contrary to the contention of defendant in each appeal, County Court properly refused to suppress his written statement to the police. The record of the suppression hearing supports the court's determination that the waiver by defendant of his Miranda rights was knowing, voluntary and intelligent. Although defendant contends that he was intoxicated at the time he waived those rights, there is no indication in the record of the suppression hearing that he “ ‘was intoxicated to the degree of mania, or of being unable to understand the meaning of his statements' “ (People v. Schompert, 19 N.Y.2d 300, 305, 279 N.Y.S.2d 515, 226 N.E.2d 305, cert denied 389 U.S. 874, 88 S.Ct. 164, 19 L.Ed.2d 157; see People v. Lake, 45 A.D.3d 1409, 1410, 845 N.Y.S.2d 649, lv denied 10 N.Y.3d 767, 854 N.Y.S.2d 329, 883 N.E.2d 1264).

In each appeal, defendant failed to preserve for our review his further contentions that his plea was not knowingly, voluntarily and intelligently entered (see People v. Johnson, 60 A.D.3d 1496, 1496, 876 N.Y.S.2d 282, lv denied 12 N.Y.3d 926, 884 N.Y.S.2d 707, 912 N.E.2d 1088), and that the plea allocution was factually insufficient (see People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5; People v. Tapscott, 302 A.D.2d 918, 755 N.Y.S.2d 352). There is no indication in the record that the narrow exception to the preservation doctrine applies herein (see Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5). By failing to request a hearing or otherwise challenge the amount of restitution ordered at sentencing, defendant also failed to preserve for our review his contention in appeal No. 1 with respect to the restitution ordered (see People v. Melino, 52 A.D.3d 1054, 1056, 860 N.Y.S.2d 660, lv denied 11 N.Y.3d 791, 866 N.Y.S.2d 617, 896 N.E.2d 103). We decline to exercise our power to review defendant's contention with respect to the restitution ordered as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ). Finally, the sentence imposed in each appeal is not unduly harsh or severe.

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

MEMORANDUM: