AUCTER, STEVEN, PEOPLE v ( 2011 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
590
KA 10-00161
PRESENT: SCUDDER, P.J., FAHEY, CARNI, GREEN, AND GORSKI, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
STEVEN L. AUCTER, DEFENDANT-APPELLANT.
TIMOTHY J. BRENNAN, AUBURN, FOR DEFENDANT-APPELLANT.
JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (BRIAN N. BAUERSFELD OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Cayuga County Court (Thomas G.
Leone, J.), rendered November 12, 2009. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of
marihuana in the second degree, criminal possession of stolen property
in the third degree, criminal possession of a weapon in the fourth
degree, possession of burglar’s tools, resisting arrest and criminal
possession of a controlled substance in the seventh 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, inter alia, criminal possession of stolen
property in the third degree (Penal Law § 165.50) and possession of
burglar’s tools (§ 140.35). Defendant contends that County Court
erred in imposing restitution in the amount of $21,000 without
conducting a restitution hearing pursuant to Penal Law § 60.27 (2).
We reject that contention. Indeed, the record establishes that the
court did not impose restitution but, instead, defendant agreed in
writing to forfeit the funds in question to the Cayuga County District
Attorney’s Office pursuant to CPLR article 13-A (see People v
Concepcion, 188 AD2d 483). In any event, even assuming, arguendo,
that the funds constituted restitution, we conclude that defendant
failed to preserve his contention for our review “ ‘inasmuch as he
failed to object to the amount of restitution at sentencing or to
request a hearing with respect thereto’ ” (People v Wright, 79 AD3d
1789, 1790; see People v Hannig, 68 AD3d 1779, 1780, lv denied 14 NY3d
801), and we decline to exercise our power to review that contention
as a matter of discretion in the interest of justice (see CPL 470.15
[6] [a]).
Entered: June 10, 2011 Patricia L. Morgan
Clerk of the Court