THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. DIANA KOSTY DEFENDANT APPELLANT

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Supreme Court, Appellate Division, Fourth Department, New York.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. DIANA KOSTY, DEFENDANT–APPELLANT.

KA 13–00144

Decided: November 21, 2014

PRESENT:  SCUDDER, P.J., SMITH, PERADOTTO, CARNI, AND SCONIERS, JJ. D.J. & J.A. CIRANDO, ESQS., SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR DEFENDANT–APPELLANT. VALERIE G. GARDNER, DISTRICT ATTORNEY, PENN YAN (MEGAN P. DADD OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

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

Memorandum:  Defendant appeals from a judgment convicting her upon her plea of guilty of offering a false instrument for filing in the first degree (Penal Law § 175.35).   Defendant contends that her waiver of the right to appeal was invalid because County Court did not explain exceptions to the waiver.   We reject that contention (see People v. Corbin, 121 AD3d 803, _).  Defendant's contention that she did not admit to the element of intent to defraud during her plea is actually a challenge to the factual sufficiency of the plea allocution, and that challenge is encompassed by her valid waiver of the right to appeal (see People v. Gardner, 101 AD3d 1634, 1634;  People v. Bailey, 49 AD3d 1258, 1259, lv denied 10 NY3d 932).   In any event, defendant failed to preserve her contention for our review inasmuch as she failed to move to withdraw the plea or to vacate the judgment of conviction (see People v. Lewandowski, 82 AD3d 1602, 1602), and this case does not fall within the “rare exception to the preservation rule” (People v. Lopez, 71 N.Y.2d 662, 666).

Defendant's valid waiver of the right to appeal also encompasses her contention that the court erred in directing her to pay a specified amount of restitution without conducting a hearing “inasmuch as that amount was an explicit part of defendant's agreed-upon plea bargain” (People v. Taylor, 70 AD3d 1121, 1122, lv denied 14 NY3d 845;  see People v. Wapniewski, 115 AD3d 1251, 1251–1252, lv denied 23 NY3d 1026).   In any event, defendant failed to preserve her contention for our review by challenging the court's determination as to the amount of restitution or by requesting a hearing on the issue (see People v. Giovanni, 53 AD3d 778, 778–779, lv denied 11 NY3d 832).   Defendant also failed to preserve for our review her contention that the court erred in imposing a collection surcharge of 10% of the amount of restitution (see CPL 470.05[2];  People v. Kirkland, 105 AD3d 1337, 1338, lv denied 21 NY3d 1043).   We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[3][c] ).

Frances E. Cafarell

Clerk of the Court