PEOPLE v. SHORTELL

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

The PEOPLE of the State of New York, Respondent, v. Kevin SHORTELL, Appellant.

Decided: June 22, 2006

Before:  MERCURE, J.P., CREW III, PETERS, ROSE and LAHTINEN, JJ. Diane Webster-Brady, Plattsburgh, for appellant. Andrew J. Wylie, District Attorney, Plattsburgh (Dana M. Loiacono of counsel), for respondent.

Appeals (1) from a judgment of the County Court of Clinton County (Ryan, J.), rendered December 10, 2004, convicting defendant upon his plea of guilty of the crime of burglary in the third degree, and (2) from an order of said court, entered April 26, 2005, which directed defendant to pay restitution.

In accordance with a negotiated plea agreement, defendant pleaded guilty to burglary in the third degree and was sentenced to an indeterminate term of imprisonment of 1 to 3 years.   Following a restitution hearing, defendant and an accomplice were found to be jointly and severely liable for restitution in the amount of $33,761.66.   Defendant now appeals.

Defendant contends that the amount of restitution is excessive and unsupported.   We disagree.   The victim of the crime testified as to the amount of missing currency and the value of the missing jewelry, as well as the cost of repairing the damage inflicted during the course of the burglary.   While conflicting testimony was given by defendant and his accomplice, County Court was free to reject such while crediting the victim's testimony (see People v. Periard, 15 A.D.3d 693, 694, 788 N.Y.S.2d 725 [2005] ).   With regard to defendant's assertion that County Court failed to consider his ability to pay, we need note only that defendant did not raise this issue before County Court and it is thus unpreserved for our review (see People v. Aliseo, 23 A.D.3d 670, 671, 805 N.Y.S.2d 98 [2005] ).   We have considered defendant's remaining arguments and find them equally unavailing.

ORDERED that the judgment and order are affirmed.

CREW III, J.

MERCURE, J.P., PETERS, ROSE and LAHTINEN, JJ., concur.

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