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

1048
KA 12-01955
PRESENT: SCUDDER, P.J., SMITH, FAHEY, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

BRADLEE E. BURNS, DEFENDANT-APPELLANT.


NORMAN P. EFFMAN, PUBLIC DEFENDER, WARSAW (LEAH RENE NOWOTARSKI OF
COUNSEL), FOR DEFENDANT-APPELLANT.

DONALD G. O’GEEN, DISTRICT ATTORNEY, WARSAW (MARSHALL A. KELLY OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Wyoming County Court (Mark H. Dadd,
J.), rendered August 17, 2012. The judgment convicted defendant, upon
his plea of guilty, of attempted assault in the second degree.

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

     Memorandum: Defendant appeals from a judgment convicting him,
upon his plea of guilty, of attempted assault in the second degree
(Penal Law §§ 110.00, 120.05 [1]). Although “[d]efendant’s challenge
to the amount of restitution is not foreclosed by his waiver of the
right to appeal because the amount of restitution was not included in
the terms of the plea agreement” (People v Tessitore, 101 AD3d 1621,
1622, lv denied 20 NY3d 1104 [internal quotation marks omitted]; see
People v Miller, 87 AD3d 1303, 1304, lv denied 18 NY3d 926), that
contention is unpreserved for our review inasmuch as defendant did not
object during the restitution hearing or otherwise alert County Court
of his objection (see CPL 470.05 [2]; see also People v Horne, 97 NY2d
404, 414 n 3). In any event, we conclude that the People established
the amount of restitution by a preponderance of the evidence, and
there is no basis to disturb the restitution award (see People v
Lucieer, 107 AD3d 1611, 1613; see generally CPL 400.30 [4]; People v
Tzitzikalakis, 8 NY3d 217, 221).




Entered:    November 8, 2013                       Frances E. Cafarell
                                                   Clerk of the Court
