         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
80
KA 10-00244
PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JEFFREY F. FASO, DEFENDANT-APPELLANT.


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

JEFFREY F. FASO, DEFENDANT-APPELLANT PRO SE.


     Appeal from a judgment of the Allegany County Court (Thomas P.
Brown, J.), rendered January 7, 2009. 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 appeals from a judgment convicting him
upon his plea of guilty of burglary in the second degree (Penal Law §
140.25 [2]). Defendant’s contention that County Court erred in
failing to offer him the opportunity to withdraw his guilty plea prior
to enhancing the sentence is not preserved for our review (see People
v VanDeViver, 56 AD3d 1118, lv denied 11 NY3d 931, 12 NY3d 788; People
v Perry, 252 AD2d 990, lv denied 92 NY2d 929). In any event, that
contention lacks merit. Defendant violated the plea agreement by
failing to comply with the conditions thereof, and thus the court “was
no longer bound by the plea promise and could properly impose an
enhanced sentence” (People v Figgins, 87 NY2d 840, 841; see
VanDeViver, 56 AD3d 1118; see also People v Gibson, 52 AD3d 1227).
Defendant’s further contention that his plea was not knowingly,
intelligently and voluntarily entered is actually a challenge to the
factual sufficiency of the plea allocution (see People v Bullock, 78
AD3d 1697). That challenge is not preserved for our review (see
People v Broadwater, 69 AD3d 643, lv denied 14 NY3d 798), and it does
not fall within the narrow exception to the preservation requirement
(see People v Lopez, 71 NY2d 662, 666). In any event, that challenge
is without merit inasmuch as the plea allocution was not rendered
factually insufficient by defendant’s monosyllabic responses to the
court’s inquiries (see People v Morris, 78 AD3d 1613).

     Defendant failed to preserve for our review his contention in his
main and pro se supplemental briefs that the court was required to
conduct a hearing with respect to the amount of restitution inasmuch
                                 -2-                           80
                                                        KA 10-00244

as he neither requested such a hearing nor objected to the amount of
restitution at sentencing (see People v Wright, 79 AD3d 1789; see
generally People v Horne, 97 NY2d 404, 414 n 3). In any event,
defendant waived that contention because he stipulated to the amount
of restitution (see Wright, 79 AD3d 1789). To the extent that
defendant’s contention in his main brief that he was denied effective
assistance of counsel survives the plea (see People v Santos, 37 AD3d
1141, lv denied 8 NY3d 950), we conclude that it is lacking in merit
(see generally People v Ford, 86 NY2d 397, 404). The sentence is not
unduly harsh or severe. Finally, defendant’s contention in his pro se
supplemental brief that the People failed to honor the executed plea
agreement involves matters outside the record on appeal and thus is
not properly before us (see generally People v Egan, 6 AD3d 1206, lv
denied 3 NY3d 639).




Entered:   March 25, 2011                      Patricia L. Morgan
                                               Clerk of the Court
