                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: December 11, 2014                    105577
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                      MEMORANDUM AND ORDER

MICHELLE A. DISOTELL,
                    Appellant.
________________________________


Calendar Date:    November 12, 2014

Before:    Peters, P.J., Lahtinen, Rose and Lynch, JJ.

                              __________


     John A. Cirando, Syracuse, for appellant.

      Alexander Lesyk, Special Prosecutor, Norwood, for
respondent.

                              __________


Rose, J.

      Appeal from a judgment of the County Court of St. Lawrence
County (Richards, J.), rendered November 20, 2012, convicting
defendant upon her plea of guilty of the crimes of welfare fraud
in the third degree and criminal possession of a forged
instrument in the second degree (three counts).

      In satisfaction of a 55-count indictment and other pending
charges, defendant pleaded guilty to welfare fraud in the third
degree and three counts of criminal possession of a forged
instrument in the second degree and purportedly waived her right
                              -2-                105577

to appeal.1 The plea agreement contemplated that defendant would
receive an aggregate probation sentence of five years if she
successfully completed the Judicial Diversion Program and a term
of imprisonment if she did not. Defendant was thereafter charged
with violating the terms of that program in multiple respects,
and was terminated from the program after waiving her right to a
hearing and admitting to the charges (see CPL 216.05 [9]).
County Court imposed the agreed-upon aggregate prison sentence of
4 to 8 years, and further ordered defendant to pay restitution.
County Court was then incorrectly advised that it had sentenced
defendant to a count of the indictment to which she had not
pleaded guilty and, five days later, resentenced her. Defendant
now appeals.2

      Defendant's challenge to the voluntariness of her plea is
unpreserved due to her failure to seek appropriate postallocution
relief (see People v Fate, 117 AD3d 1327, 1328 [2014]). Contrary
to defendant's further contention, her "affirmative and
unequivocal responses to County Court's inquiry did not otherwise
signal doubt regarding [her] guilt or the voluntariness of [her]
plea" such as to bring this case within the narrow exception to
the preservation requirement (People v Threatt, 16 AD3d 706, 707
[2005]; see People v Aubrey, 73 AD3d 1393, 1394 [2010], lv
denied 16 NY3d 893 [2011]).

      Although defendant next argues that County Court abused its
discretion in terminating her from the Judicial Diversion
Program, she admitted to violating the terms of the program in
return for a specified sentence and her failure to attack that
agreement before County Court leaves the issue unpreserved
(see People v Cooney, 120 AD3d 1445, 1446 [2014]). Her challenge


    1
        The People correctly concede that defendant's appeal
waiver is invalid (see People v Villnave, 117 AD3d 1178, 1178 n
[2014]).
    2
        The amended "notice of appeal misstates the date upon
which the judgment was rendered, [but] we exercise our discretion
to overlook the inaccuracy and treat the notice as valid" (People
v Pittman, 119 AD3d 1242, 1242 n [2014]; see CPL 460.10 [6]).
                              -3-                  105577

to the amount of restitution as lacking record support is
similarly unpreserved, as she was aware that restitution would be
a component of the sentence and failed to request a restitution
hearing or otherwise dispute the amount of the award at
sentencing (see People v Horne, 97 NY2d 404, 414 n 3 [2002];
People v White, 119 AD3d 1286, 1287 [2014]). The record,
moreover, provides no compelling reason for us to exercise our
jurisdiction to reverse or modify in the interest of justice with
regard to either issue.

      As a final matter, defendant pleaded guilty to counts 1, 8,
38 and 48 of the indictment. County Court resentenced her,
however, on counts 1, 8, 38 and 40. Inasmuch as County Court
failed to pronounce sentence upon each of the counts to which
defendant pleaded guilty, remittal for resentencing is necessary
(see CPL 380.20; People v Sturgis, 69 NY2d 816, 817-818 [1987];
People v Volfson, 69 AD3d 1123, 1125 [2010]).

     Peters, P.J., Lahtinen and Lynch, JJ., concur.



      ORDERED that the judgment is modified, on the law, by
vacating the sentence imposed; matter remitted to the County
Court of St. Lawrence County for resentencing; and, as so
modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
