                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 2, 2016                      106366
________________________________

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

SCOTT MOREHOUSE,
                    Appellant.
________________________________


Calendar Date:   April 27, 2016

Before:   Peters, P.J., Lahtinen, Garry, Clark and Mulvey, JJ.

                             __________


      Susan Patnode, Rural Law Center of New York, Castleton
(George J. Hoffman Jr. of counsel), for appellant.

      Kathleen B. Hogan, District Attorney, Lake George (Emilee
B. Davenport of counsel), for respondent.

                             __________


Lahtinen, J.

      Appeal from a judgment of the County Court of Warren County
(Hall Jr., J.), rendered October 9, 2013, convicting defendant
upon his plea of guilty of the crime of criminal possession of
stolen property in the fourth degree.

      In 2011, defendant pleaded guilty to forgery in the second
degree in full satisfaction of an eight-count indictment and
executed a waiver of his right to appeal, and County Court
sentenced him to a prison term of 2 to 4 years (109 AD3d 1022,
1022 [2013]). On appeal, this Court found that defendant had
made a statement during his allocution that implicated the
voluntariness of his guilty plea, vacated defendant's guilty plea
and remitted the matter to County Court (id. at 1022-1023).
                              -2-                106366

Thereafter, following the denial of defendant's request for
substitute counsel, defendant entered an Alford plea (North
Carolina v Alford, 400 US 25, 37 [1970]) to one count of criminal
possession of stolen property in the fourth degree in full
satisfaction of the eight-count indictment and executed in open
court a written waiver of the right to appeal. Consistent with
the plea agreement, County Court sentenced defendant to a prison
term of 1½ to 3 years, with credit for prison time already
served, and ordered restitution in the amount of $1,345.
Defendant now appeals.

      While defendant's challenge to his Alford plea survives his
appeal waiver to the extent that it implicates the voluntariness
of his plea, it is unpreserved as he failed to make an
appropriate postallucution motion, and the narrow exception to
the preservation rule is inapplicable (see People v Hughes, 134
AD3d 1301, 1301 [2015], lv denied 27 NY3d 966 [2016]; People v
Dale, 115 AD3d 1002, 1007 [2014]; People v Fallen, 106 AD3d 1118,
1119 [2013], lv denied 22 NY3d 1156 [2014]; People v Ture, 94
AD3d 1163, 1164 [2012], lv denied 19 NY3d 968 [2012]). In any
event, were the issue properly before us, we would find
defendant's contention that County Court erred in accepting his
Alford plea unavailing. Here, the record reveals that County
Court ensured that defendant understood the rights that he
knowingly and voluntarily relinquished by pleading guilty, that
he had the opportunity to speak with his attorney before pleading
guilty and that his plea was "the product of a voluntary and
rational choice" to avoid the risks of trial and the possibility
of consecutive sentences for numerous convictions (Matter of
Silmon v Travis, 95 NY2d 470, 475 [2000]; see People v Ture, 94
AD3d at 1164; People v Andrews, 78 AD3d 1229, 1233 [2010], lv
denied 16 NY3d 827 [2011]).

      Similarly, even if defendant's contention that County Court
failed to make an adequate inquiry before denying his request for
substitute counsel survived his appeal waiver by implicating the
voluntariness of his guilty plea (see People v Rolfe, 83 AD3d
1219, 1220 [2011], lv denied 17 NY3d 809 [2011]), defendant
failed to preserve this claim by moving to withdraw his plea (see
CPL 220.60 [3]). In any event, County Court's ample inquiry into
the basis for defendant's request for substitute counsel revealed
                              -3-                106366

nothing more than defendant's personal animus towards his trial
attorney, and defendant failed to articulate any "conflict of
interest or other irreconcilable conflict" that affected
counsel's representation of him (People v Stevenson, 112 AD3d
989, 990 [2013], lv denied 22 NY3d 1159 [2014] [internal
quotation marks omitted]; accord People v Sides, 75 NY2d 822, 824
[1990]). Accordingly, were this issue before us, we would find
that defendant failed to demonstrate good cause for the
appointment of substitute counsel, and, therefore, County Court
did not abuse its discretion in denying his request (see People v
Clapper, 133 AD3d 1037, 1039 [2015], lv denied ___ NY3d ___ [Apr.
11, 2016]; People v Stevenson, 112 AD3d at 990-991; People v
Rolfe, 83 AD3d at 1220).

      Finally, defendant's claim that there is a lack of support
in the record for the amount of restitution ordered is also
unpreserved for our review because the plea agreement and appeal
waiver specified $991 as the amount of restitution to be imposed,
and defendant failed to request a hearing or challenge that
amount during sentencing (cf. People v Robinson, 133 AD3d 1043,
1044 [2015]; People v Gardner, 129 AD3d 1386, 1388 [2015]).
Nevertheless, the People concede in their brief, and we agree,
that the $1,345 in restitution ordered by County Court exceeds
the $991 that was specified in the plea agreement and in the
appeal waiver signed by defendant. We therefore deem it
appropriate to exercise our interest of justice jurisdiction to
take corrective action and modify the judgment by reversing the
sentence only insofar as it directs defendant to pay restitution
in the amount of $1,345 and remit the matter to County Court for
the imposition of restitution in the correct amount (see People v
Gardner, 129 AD3d at 1388; People v Lyman, 119 AD3d 968, 970
[2014]).

     Peters, P.J., Garry, Clark and Mulvey, JJ., concur.
                              -4-                  106366

      ORDERED that the judgment is modified, as a matter of
discretion in the interest of justice, by reversing so much
thereof as directed defendant to pay restitution in the amount of
$1,345; matter remitted to the County Court of Warren County for
further proceedings not inconsistent with this Court's decision;
and, as so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
