People v. White , 31 N.Y.S.3d 669 ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: May 19, 2016 107192
________________________________
THE PEOPLE OF THE STATE OF
NEW YORK,
Respondent,
v MEMORANDUM AND ORDER
TRACY J. WHITE JR.,
Appellant.
________________________________
Calendar Date: April 20, 2016
Before: Lahtinen, J.P., McCarthy, Devine, Clark and Mulvey, JJ.
__________
Frank A. Sarat, Homer, for appellant.
Weeden A. Wetmore, District Attorney, Elmira (Susan Rider-
Ulacco of counsel), for respondent.
__________
Mulvey, J.
Appeal from a judgment of the County Court of Chemung
County (Rich Jr., J.), rendered September 19, 2014, convicting
defendant upon his plea of guilty of the crimes of robbery in the
second degree (four counts) and grand larceny in the third degree
(three counts).
Defendant was charged by indictment with four counts of
robbery in the second degree and three counts of grand larceny in
the third degree. Without any promise having been made as to the
sentence to be imposed, defendant pleaded guilty as charged.
Following a restitution hearing, County Court sentenced defendant
to an aggregate prison term of 13 years, to be followed by five
years of postrelease supervision, and ordered him to pay
restitution in the amount of $68,662, plus a five percent
-2- 107192
surcharge. Defendant appeals.
Initially, as the record does not reflect that he made an
appropriate postallocution motion, defendant's challenge to the
voluntariness of his plea is unpreserved (see People v
Richardson, 132 AD3d 1022, 1023 [2015]; People v Waite, 120 AD3d
1446, 1447 [2014]). Moreover, the narrow exception to the
preservation rule was not triggered since defendant did not make
any statements during the plea allocution that cast doubt upon
his guilt or otherwise called into question the voluntariness of
his plea (see People v Lopez, 71 NY2d 662, 666 [1988]; People v
Spellicy, 123 AD3d 1228, 1230 [2014], lv denied 25 NY3d 992
[2015]). Similarly, in the absence of an objection at the time
of sentencing, defendant failed to preserve his contention that
County Court considered improper factors in imposing sentence
(see People v Colome-Rodriguez, 120 AD3d 1525, 1525-1526 [2014],
lv denied 25 NY3d 1161 [2015]; People v Rosado, 300 AD2d 838,
840-841 [2002], lv denied 99 NY2d 619 [2003]; People v Anonymous,
293 AD2d 374, 374 [2002], lv denied 98 NY2d 729 [2002]).
Lastly, defendant argues that County Court erred in
ordering him to pay $19,149 in restitution to Finger Lakes
Healthcare Federal Credit Union to cover the cost of hiring armed
security guards for a period of roughly three months until
certain physical security measures could be installed. As
relevant here, County Court "may require restitution or
reparation as part of the sentence imposed upon a person
convicted of an offense[] and . . . require the defendant to make
restitution of the fruits of his or her offense or reparation for
the actual out-of-pocket loss caused thereby" (Penal Law § 60.27
[1] [emphasis added]). The amount of restitution imposed "may be
no greater than the sum necessary to compensate the victim for
out-of-pocket losses" (People v Consalvo, 89 NY2d 140, 144
[1996]; see People v Tzitzikalakis, 8 NY3d 217, 220 [2007];
People v Ayers, 45 AD3d 1290, 1291 [2007], lv denied 10 NY3d 808
[2008]). Here, while the credit union's decision to temporarily
hire security guards was likely motivated by the fact that
defendant perpetrated two of his offenses against the same
branch, we cannot conclude that this voluntary decision
constituted an out-of-pocket loss caused by defendant's offenses
(see Penal Law § 60.27 [1]; People v Nelson, 38 AD3d 472, 473
-3- 107192
[2007], lv denied 9 NY3d 879 [2007]). Accordingly, the
restitution award should be modified to $49,513, with a five
percent surcharge of $2,475.65, for a total award of $51,988.65.
Lahtinen, J.P., McCarthy, Devine and Clark, JJ., concur.
ORDERED that the judgment is modified, on the law, by
reducing the amount of restitution awarded to $49,513, with a
five percent surcharge of $2,475.65, and, as so modified,
affirmed.
ENTER:
Robert D. Mayberger
Clerk of the Court