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

1399
KA 12-00900
PRESENT: SMITH, J.P., FAHEY, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

KURT MOORE, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (William D.
Walsh, J.), rendered July 6, 2011. The judgment convicted defendant,
upon his plea of guilty, of criminal possession of a weapon in the
second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by vacating the postsentence
restitution order and as modified the judgment is affirmed.

      Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of criminal possession of a weapon in the second degree
(Penal Law § 265.03 [3]), defendant challenges County Court’s
imposition of restitution. Initially, we note that, although an order
of restitution is not as a general rule appealable (see CPL 450.10;
People v Fricchione, 43 AD3d 410, 411), “we deem the postsentence
restitution order[] here to be [an] amendment[] to the judgment of
conviction, [and thus] our review of such order[] is appropriate” upon
defendant’s appeal from the judgment of conviction (People v
Naumowicz, 76 AD3d 747, 749 n 1). Furthermore, as the People
correctly concede, defendant’s contention that the court had no
authority to impose restitution under these circumstances is a
challenge to the legality of the sentence, and thus survives his
waiver of the right to appeal (see People v Taylor, 242 AD2d 925,
926).

     With respect to the merits, as the People again correctly
concede, the court erred in imposing restitution arising from a charge
of criminal possession of a forged instrument because that charge was
not contained in the indictment, nor was it related to an offense that
was “part of the same criminal transaction or . . . contained in any
other accusatory instrument disposed of by” defendant’s plea of guilty
to the offense on appeal (Penal Law § 60.27 [4] [a]; see People v
                                 -2-                         1399
                                                        KA 12-00900

Diola, 299 AD2d 962, 962, lv denied 99 NY2d 581; cf. People v Brady,
59 AD3d 748, 749). We therefore modify the judgment by vacating the
order of restitution.




Entered:   January 2, 2015                     Frances E. Cafarell
                                               Clerk of the Court
