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

1334
KA 12-00042
PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, CARNI, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JOEL A. LEWIS, DEFENDANT-APPELLANT.


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

GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO (COURTNEY E. PETTIT OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Oswego County Court (Walter W.
Hafner, Jr., J.), rendered December 1, 2011. The judgment convicted
defendant, upon his plea of guilty, of burglary in the second degree.

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

     Memorandum: Defendant was convicted upon a plea of guilty of
burglary in the second degree (Penal Law § 140.25 [2]), and was
sentenced to a determinate term of incarceration of seven years with
five years of postrelease supervision. He was also ordered to pay
restitution in the amount of $1,102.50. On defendant’s appeal from
that judgment of conviction, we modified the judgment by vacating the
sentence on the grounds that restitution had not been part of the plea
agreement and that “the record [was] devoid of any evidence supporting
the amount of restitution that defendant was required to pay” (People
v Lewis, 89 AD3d 1485, 1486). We remitted the matter to County Court
“to impose the sentence promised or to afford defendant the
opportunity to move to withdraw his plea” (id.).

     On remittal, the court afforded defendant the opportunity to
withdraw his guilty plea, which he declined to do. Rather, defendant
advised the court that he was “choosing to be sentenced to the
sentence promised,” which did not include restitution. The court,
however, determined that it could not impose the sentence promised at
the time that the plea was entered because the People had requested
restitution, which they were entitled to do “at or before the time of
sentencing” (Penal Law § 60.27 [1]; see People v Naumowicz, 76 AD3d
747, 749; see generally People v Horne, 97 NY2d 404, 410-412). The
court therefore vacated defendant’s plea over his objection. After
conferring with defense counsel, defendant again pleaded guilty to
burglary in the second degree in exchange for the previously agreed-
                                 -2-                          1334
                                                         KA 12-00042

upon sentence, i.e., a determinate term of incarceration of seven
years and five years of postrelease supervision, but with the addition
of restitution in the amount of $1,102.50.

     On appeal from the ensuing judgment of conviction, defendant
contends that his guilty plea was not knowingly, voluntarily, and
intelligently entered. That contention is unpreserved for our review
inasmuch as defendant did not move to withdraw the plea or to vacate
the judgment of conviction on that ground (see People v Lugg, 108 AD3d
1074, 1075; People v Sherman, 8 AD3d 1026, 1026, lv denied 3 NY3d
681). In any event, it is without merit. The record establishes that
defendant’s plea was knowingly, voluntarily, and intelligently entered
even though some of defendant’s responses to the court’s inquiries
were monosyllabic (see People v VanDeViver, 56 AD3d 1118, 1118, lv
denied 11 NY3d 931, reconsideration denied 12 NY3d 788; cf. People v
Brown, 41 AD3d 1234, 1234, lv denied 9 NY3d 873), and further
establishes that “ ‘defendant was rational and coherent during the
entire plea proceeding’ ” (VanDeViver, 56 AD3d at 1118; see generally
People v Knoxsah, 94 AD3d 1505, 1505-1506).

     Defendant’s challenge to the amount of restitution is likewise
unpreserved for our review inasmuch as he “did not request a hearing
to determine the [amount of restitution] or otherwise challenge the
amount of restitution order[ed] during the sentencing proceeding”
(People v Jones, 108 AD3d 1206, 1207 [internal quotation marks
omitted]; see People v Aucter, 85 AD3d 1551, 1552, lv denied 18 NY3d
922). Indeed, defendant expressly consented to the amount of
restitution twice during the plea colloquy (see People v Brown, 70
AD3d 1378, 1379; People v McElrath, 241 AD2d 932, 932). We further
note that the present record contains evidence supporting the amount
of restitution ordered, i.e., a victim impact statement included in
the presentence report, and supporting documentation from the victims’
insurance carrier (see People v LaVilla, 87 AD3d 1369, 1370; McElrath,
241 AD2d at 932; cf. Lewis, 89 AD3d at 1485). We therefore see no
basis to disturb the amount of restitution ordered.




Entered:   February 14, 2014                    Frances E. Cafarell
                                                Clerk of the Court
