           SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

816
KA 11-02403
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, CARNI, AND LINDLEY, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

DANIEL W. BROTZ, DEFENDANT-APPELLANT.


LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (NEAL D. FUTERFAS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (DAVID P. DYS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Ontario County Court (Craig J.
Doran, J.), rendered October 23, 2009. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of stolen
property in the fourth degree (six counts) and identity theft in the
third degree (six counts).

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

     Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of six counts each of criminal possession of stolen
property in the fourth degree (Penal Law § 165.45 [2]) and identity
theft in the third degree (§ 190.78 [1]), defendant contends that
County Court violated CPL 380.50 (1) by not affording him an
opportunity to speak at sentencing about the restitution portion of
his sentence. Because defendant did not request an opportunity to be
heard about restitution, the payment of which was contemplated by the
plea agreement, and did not object to the order of restitution on that
or indeed any other ground, his contention is unpreserved for our
review (see CPL 470.05 [2]; People v McGinn, 96 AD3d 977, 978, lv
denied 19 NY3d 998; People v Sharp, 56 AD3d 1230, 1231, lv denied 11
NY3d 900), and 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]).




Entered:    July 19, 2013                          Frances E. Cafarell
                                                   Clerk of the Court
