People v. Brotz

• Decision Date: 19 July 2013
• Citation: 2013 N.Y. Slip Op. 05424,108 A.D.3d 1236,968 N.Y.S.2d 824
• Parties: The PEOPLE of the State of New York, Respondent, v. Daniel W. BROTZ, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

108 A.D.3d 1236
968 N.Y.S.2d 824
2013 N.Y. Slip Op. 05424

The PEOPLE of the State of New York, Respondent,
v.
Daniel W. BROTZ, Defendant–Appellant.

Supreme Court, Appellate Division, Fourth Department, New York.

July 19, 2013.

Leanne Lapp, Public Defender, Canandaigua (Neal D. Futerfas of Counsel), for Defendant–Appellant.

R. Michael Tantillo, District Attorney, Canandaigua (David P. Dys of Counsel), for Respondent.

PRESENT: SMITH, J.P., FAHEY, PERADOTTO, CARNI, AND LINDLEY, JJ.

MEMORANDUM:

On appeal from a judgment convicting him upon his plea of guilty of six counts each of criminal possession of stolen property in the fourth degree (Penal Law § 165.45[2] ) and identity theft in the third degree (§ 190.78 [1] ), defendant contends that County Court violated CPL 380.50(1) by not affording him an opportunity to speak at sentencing about the restitution portion of his sentence. Because defendant did not request an opportunity to be heard about restitution, the payment of which was contemplated by the plea agreement, and did not object to the order of restitution on that or indeed any other ground, his contention is unpreserved for our review ( seeCPL 470.05 [2]; People v. McGinn, 96 A.D.3d 977, 978, 946 N.Y.S.2d 489,lv. denied19 N.Y.3d 998, 951 N.Y.S.2d 475, 975 N.E.2d 921;People v. Sharp, 56 A.D.3d 1230, 1231, 867 N.Y.S.2d 802,lv. denied11 N.Y.3d 900, 873 N.Y.S.2d 276, 901 N.E.2d 770), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( seeCPL 470.15[3][c] ).

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.