PAUL, JEFFREY D., PEOPLE v ( 2016 )


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  •         SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    390
    KA 14-00817
    PRESENT: CENTRA, J.P., PERADOTTO, CARNI, CURRAN, AND TROUTMAN, JJ.
    THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
    V                               MEMORANDUM AND ORDER
    JEFFREY D. PAUL, ALSO KNOWN AS JEFFREY D. LIPSON,
    DEFENDANT-APPELLANT.
    THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALAN WILLIAMS OF
    COUNSEL), FOR DEFENDANT-APPELLANT.
    JOSEPH V. CARDONE, DISTRICT ATTORNEY, ALBION (KATHERINE BOGAN OF
    COUNSEL), FOR RESPONDENT.
    Appeal from a judgment of the Orleans County Court (James P.
    Punch, J.), rendered January 27, 2014. The judgment convicted
    defendant, upon his plea of guilty, of criminal possession of stolen
    property in the fourth 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 criminal possession of stolen property in
    the fourth degree (Penal Law § 165.45). Even assuming, arguendo, that
    defendant’s waiver of the right to appeal is invalid (see People v
    Harris, 125 AD3d 1506, 1506, lv denied 26 NY3d 929), we nevertheless
    conclude that none of defendant’s contentions on appeal requires
    reversal or modification. Defendant failed to preserve for our review
    his challenge to the amount of restitution imposed “inasmuch as he did
    not object to that amount at sentencing . . . , and in any event he
    affirmatively waived his right to a restitution hearing” (People v
    Tessitore, 101 AD3d 1621, 1622, lv denied 20 NY3d 1104). In addition,
    “[b]y failing to request a hearing on the issue whether he had the
    ability to pay the amount of restitution ordered by County Court,
    defendant failed to preserve for our review his further contention
    that the court failed to consider his ability to pay the restitution”
    (People v Dillon, 90 AD3d 1468, 1468-1469, lv denied 19 NY3d 1025; see
    People v Pugliese, 113 AD3d 1112, 1112, lv denied 23 NY3d 1066).
    Moreover, although we agree with defendant that his release to parole
    supervision does not render his challenge to the severity of his
    sentence moot inasmuch as he remains under the control of the Parole
    Board until his sentence has terminated (see People v Sebring, 111
    AD3d 1346, 1347, lv denied 22 NY3d 1159), we nevertheless conclude
    -2-                  390
    KA 14-00817
    that his challenge is without merit.
    Entered:   May 6, 2016                 Frances E. Cafarell
    Clerk of the Court
    

Document Info

Docket Number: KA 14-00817

Filed Date: 5/6/2016

Precedential Status: Precedential

Modified Date: 10/7/2016