                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered:   November 13, 2014               105842
                                                       105968
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

JESSICA BROWN,
                    Appellant.
________________________________


Calendar Date:   October 8, 2014

Before:   Peters, P.J., Lahtinen, Garry, Rose and Lynch, JJ.

                             __________


     Lisa A. Burgess, Indian Lake, for appellant.

      Derek P. Champagne, District Attorney, Malone (Glenn
MacNeill of counsel), for respondent.

                             __________


Lahtinen, J.

      Appeal from a judgment of the County Court of Franklin
County (Main Jr., J.), rendered December 10, 2012, convicting
defendant upon her plea of guilty of the crimes of criminal
possession of a criminal substance in the third degree (three
counts) and criminal sale of a controlled substance in the third
degree.

      In 2012, defendant was charged in two indictments with
crimes related to narcotic possession and sale. Following the
denial of her application requesting judicial diversion to a
substance abuse treatment program, defendant pleaded guilty to
one count of criminal sale of a controlled substance in the third
degree and three counts of criminal possession of a controlled
                              -2-                  105842
                                                   105968

substance in the third degree in full satisfaction of both
indictments. Defendant also waived her right to appeal all
challenges other than constitutional issues or a violation of
County Court's sentencing commitment in connection with the plea.
Thereafter, in accord with the plea agreement, defendant was
sentenced to an aggregate term of five years in prison to be
followed by two years of postrelease supervision. County Court
also directed defendant to pay restitution in the amount of $430,
along with a 10% collection surcharge. Defendant appeals, and we
affirm.

      Defendant's valid waiver of her right to appeal precludes
her claim that County Court should have granted her application
for judicial diversion (see People v Smith, 112 AD3d 1232, 1232
[2013], lv denied 22 NY3d 1203 [2014]; People v Roche, 106 AD3d
1328, 1329 [2013]). Although her waiver does not preclude her
challenge to the amount of restitution to be awarded, inasmuch as
the plea agreement did not specify the amount or if restitution
would definitely be awarded (see People v Ortolaza, 120 AD3d 843,
844 [2014]; People v Lyman, 119 AD3d 968, 970 [2014]), the issue
is unpreserved because defendant did not request a hearing or
otherwise challenge the award of restitution at sentencing, and
corrective action in the interest of justice is unwarrranted (see
People v Ortolaza, 120 AD3d at 844; People v Smith, 112 AD3d
1232, 1233 [2013], lv denied 22 NY3d 1203 [2014]).

     Peters, P.J., Garry, Rose and Lynch, JJ., concur.


     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
