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

1018
KA 13-02153
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

GREGORY P. KNAPP, DEFENDANT-APPELLANT.


JOHN A. HERBOWY, ROME, FOR DEFENDANT-APPELLANT.

JEFFREY S. CARPENTER, DISTRICT ATTORNEY, HERKIMER (JACQUELYN M. ASNOE
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Herkimer County Court (John H.
Crandall, J.), entered June 25, 2013. The judgment convicted
defendant, upon his plea of guilty, of burglary in the third degree.

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

     Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of burglary in the third degree (Penal Law § 140.20),
defendant contends that County Court erred in failing to consider his
ability to pay the restitution award. That contention is not
preserved for our review (see People v Pugliese, 113 AD3d 1112, 1112,
lv denied 23 NY3d 1066; People v Shortell, 30 AD3d 837, 838), and it
is without merit in any event. “ ‘Consideration of defendant’s
ability to pay was not required because restitution was ordered as
part of a nonprobationary sentence that included a period of
incarceration as a significant component’ ” (People v Willis, 105 AD3d
1397, 1397, lv denied 22 NY3d 960; see People v Holmes, 300 AD2d 1072,
1073). Contrary to defendant’s further contention, the People
established the amount of restitution by a preponderance of the
evidence (see generally § 60.27 [2]; CPL 400.30 [4]; People v
Tzitzikalakis, 8 NY3d 217, 221; Pugliese, 113 AD3d at 1112-1113). The
victim’s sworn testimony regarding the value of the stolen jewelry and
weapons was sufficient to establish his out-of-pocket losses (see
People v Howell, 46 AD3d 1464, 1465, lv denied 10 NY3d 841; Shortell,
30 AD3d at 837-838).




Entered:    October 2, 2015                        Frances E. Cafarell
                                                   Clerk of the Court
