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

299
KA 11-00342
PRESENT: CENTRA, J.P., FAHEY, CARNI, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

RODNEY W. WILLIS, JR., DEFENDANT-APPELLANT.


BRIDGET L. FIELD, ROCHESTER, FOR DEFENDANT-APPELLANT.

LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (WILLIAM G. ZICKL OF
COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Genesee County Court (Robert C.
Noonan, J.), rendered December 8, 2008. The order directed defendant
to pay restitution.

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

     Memorandum: On appeal from an order requiring him to pay
restitution in the amount of $141,750, defendant contends that County
Court erred in failing to conduct a hearing on the issue of his
ability to pay restitution. Defendant failed to preserve that
contention for our review (see People v Dillon, 90 AD3d 1468, 1468-
1469, lv denied 19 NY3d 1025). In any event, we conclude that it
lacks merit. “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 Ford, 77 AD3d 1176, 1177, lv denied 17 NY3d 816;
see People v Henry, 64 AD3d 804, 807, lv denied 13 NY3d 860). We thus
reject defendant’s further contention that he received ineffective
assistance of counsel based on defense counsel’s failure to request a
hearing on defendant’s ability to pay restitution. Defense counsel
was not ineffective for failing to request a hearing that had no
“colorable basis” (People v Rivera, 71 NY2d 705, 709; see Ford, 77
AD3d at 1177).




Entered:    April 26, 2013                         Frances E. Cafarell
                                                   Clerk of the Court
