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

1431
KA 13-00574
PRESENT: SCUDDER, P.J., SMITH, CENTRA, PERADOTTO, AND CARNI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

KEVIN M. CAMP, DEFENDANT-APPELLANT.


D.J. & J.A. CIRANDO, ESQS., SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR
DEFENDANT-APPELLANT.

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (JAMES B. RITTS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Ontario County Court (Frederick G.
Reed, A.J.), rendered February 6, 2013. The judgment convicted
defendant, upon his plea of guilty, of rape in the first degree and
disseminating indecent material to minors in the second degree (two
counts).

     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 rape in the first degree (Penal Law §
130.35 [4]) and two counts of disseminating indecent material to
minors in the second degree (§ 235.21 [3]). Defendant failed to move
to withdraw his plea or to vacate the judgment of conviction, and he
therefore failed to preserve for our review his contention that the
plea was improperly entered (see People v McNair, 13 NY3d 821, 822;
People v Lopez, 71 NY2d 662, 665; People v Pitcher, 126 AD3d 1471,
1472, lv denied 25 NY3d 1169). This case does not fall into the “rare
exception to the preservation requirement set forth in Lopez because
nothing in the plea allocution calls into question the voluntariness
of the plea or casts ‘significant doubt’ upon his guilt” (Pitcher, 126
AD3d at 1472). Defendant waived his right to a hearing on restitution
and therefore failed to preserve for our review his contention that
County Court erred in its determination of the amount of restitution
(see People v Miller, 87 AD3d 1303, 1304, lv denied 18 NY3d 926;
People v Roots, 48 AD3d 1031, 1032). We decline to exercise our power
to review that contention as a matter of discretion in the interest of
justice (see Miller, 87 AD3d at 1304). Defendant also failed to
preserve for our review his contention that the court erred in
imposing a collection surcharge of 10%, rather than 5%, of the amount
of restitution, and we decline to exercise our power to review that
contention as a matter of discretion in the interest of justice (see
                                 -2-                          1431
                                                         KA 13-00574

People v Kosty, 122 AD3d 1408, 1409, lv denied 24 NY3d 1220; People v
Kirkland, 105 AD3d 1337, 1338-1339, lv denied 21 NY3d 1043).

     Defendant next contends that the court did not comply with CPL
400.15 in sentencing him as a second violent felony offender.
Defendant failed to preserve that contention for our review (see
People v Judd, 111 AD3d 1421, 1423, lv denied 23 NY3d 1039; see also
People v Loper, 118 AD3d 1394, 1395, lv denied 25 NY3d 1204) and, in
any event, it lacks merit. Although the court misspoke when it asked
defendant if he was a second felony offender rather than a second
violent felony offender, the People filed a second violent felony
offender statement pursuant to CPL 400.15 (2). In addition, defendant
was asked, and he admitted, that he was convicted of the prior
offense, which was a violent felony (see CPL 400.15 [3]). We thus
conclude that there was substantial compliance with CPL 400.15 (see
People v Myers, 52 AD3d 1229, 1230). To the extent that defendant’s
contention that he was denied effective assistance of counsel survives
his plea of guilty (see People v Robinson, 39 AD3d 1266, 1267, lv
denied 9 NY3d 869), we reject that contention. The record establishes
that defendant received “an advantageous plea and nothing in the
record casts doubt on the apparent effectiveness of counsel” (People v
Ford, 86 NY2d 397, 404; see People v Arney, 120 AD3d 949, 950).
Finally, the sentence is not unduly harsh or severe.




Entered:   December 23, 2015                   Frances E. Cafarell
                                               Clerk of the Court
