Citation Numbers： 124 A.D.3d 1386, 1 N.Y.S.3d 693
Judges： Dejoseph, Fahey, Smith, Whalen
Filed Date： 1/2/2015
Status： Precedential
Modified Date： 11/1/2024
Appeal from a judgment of the Onondaga County Court (William D. Walsh, J.), rendered July 6, 2011. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a weapon in the second degree.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of criminal possession of a weapon in the second degree (Penal Law § 265.03 [3]), defendant challenges County Court’s imposition of restitution. Initially, we note that, although an order of restitution is not as a general rule appeal-able (see CPL 450.10; People v Fricchione, 43 AD3d 410, 411 [2007]), “we deem the postsentence restitution order[ ] here to be [an] amendment ] to the judgment of conviction, [and thus] our review of such order[ ] is appropriate” upon defendant’s appeal from the judgment of conviction (People v Naumowicz, 76 AD3d 747, 749 n 1 [2010]). Furthermore, as the People correctly concede, defendant’s contention that the court had no authority to impose restitution under these circumstances is a challenge to the legality of the sentence, and thus survives his waiver of the right to appeal (see People v Taylor, 242 AD2d 925, 926 [1997]).
With respect to the merits, as the People again correctly concede, the court erred in imposing restitution arising from a charge of criminal possession of a forged instrument because that charge was not contained in the indictment, nor was it related to an offense that was “part of the same criminal transaction or . . . contained in any other accusatory instrument disposed of by” defendant’s plea of guilty to the offense on appeal (Penal Law § 60.27 [4] [a]; see People v Diola, 299 AD2d 962, 962 [2002], lv denied 99 NY2d 581 [2003]; cf. People v Brady, 59 AD3d 748, 749 [2009]). We therefore modify the judgment by vacating the order of restitution.