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

1188
KA 13-00144
PRESENT: SCUDDER, P.J., SMITH, PERADOTTO, CARNI, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DIANA KOSTY, DEFENDANT-APPELLANT.


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

VALERIE G. GARDNER, DISTRICT ATTORNEY, PENN YAN (MEGAN P. DADD OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Yates County Court (W. Patrick
Falvey, J.), rendered November 13, 2012. The judgment convicted
defendant, upon her plea of guilty, of offering a false instrument for
filing in the first degree.

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

     Memorandum: Defendant appeals from a judgment convicting her
upon her plea of guilty of offering a false instrument for filing in
the first degree (Penal Law § 175.35). Defendant contends that her
waiver of the right to appeal was invalid because County Court did not
explain exceptions to the waiver. We reject that contention (see
People v Corbin, 121 AD3d 803, ___). Defendant’s contention that she
did not admit to the element of intent to defraud during her plea is
actually a challenge to the factual sufficiency of the plea
allocution, and that challenge is encompassed by her valid waiver of
the right to appeal (see People v Gardner, 101 AD3d 1634, 1634; People
v Bailey, 49 AD3d 1258, 1259, lv denied 10 NY3d 932). In any event,
defendant failed to preserve her contention for our review inasmuch as
she failed to move to withdraw the plea or to vacate the judgment of
conviction (see People v Lewandowski, 82 AD3d 1602, 1602), and this
case does not fall within the “rare exception to the preservation
rule” (People v Lopez, 71 NY2d 662, 666).

     Defendant’s valid waiver of the right to appeal also encompasses
her contention that the court erred in directing her to pay a
specified amount of restitution without conducting a hearing “inasmuch
as that amount was an explicit part of defendant’s agreed-upon plea
bargain” (People v Taylor, 70 AD3d 1121, 1122, lv denied 14 NY3d 845;
see People v Wapniewski, 115 AD3d 1251, 1251-1252, lv denied 23 NY3d
1026). In any event, defendant failed to preserve her contention for
                                 -2-                          1188
                                                         KA 13-00144

our review by challenging the court’s determination as to the amount
of restitution or by requesting a hearing on the issue (see People v
Giovanni, 53 AD3d 778, 778-779, lv denied 11 NY3d 832). Defendant
also failed to preserve for our review her contention that the court
erred in imposing a collection surcharge of 10% of the amount of
restitution (see CPL 470.05 [2]; People v Kirkland, 105 AD3d 1337,
1338, lv denied 21 NY3d 1043). We decline to exercise our power to
review that contention as a matter of discretion in the interest of
justice (see CPL 470.15 [3] [c]).




Entered:   November 21, 2014                   Frances E. Cafarell
                                               Clerk of the Court
