People v. Camp

• Decision Date: 23 December 2015
• Parties: The PEOPLE of the State of New York, Respondent, v. Kevin M. CAMP, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

134 A.D.3d 1470
21 N.Y.S.3d 521

The PEOPLE of the State of New York, Respondent,
v.
Kevin M. CAMP, Defendant–Appellant.

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

Dec. 23, 2015.

21 N.Y.S.3d 522

D.J. & J.A. Cirando, Esqs., Syracuse (John A. Cirando of Counsel), for Defendant–Appellant.

R. Michael Tantillo, District Attorney, Canandaigua (James B. Ritts of Counsel), for Respondent.

PRESENT: SCUDDER, P.J., SMITH, CENTRA, PERADOTTO, AND CARNI, JJ.

MEMORANDUM:

134 A.D.3d 1470

Defendant appeals from a judgment convicting him upon his plea of guilty of rape in the first degree (Penal Law § 130.35 [4] ) and two counts of disseminating indecent material to minors in the second degree (§ 235.21[3] ). Defendant failed to move to withdraw his plea or to vacate the judgment of conviction, and he therefore failed to preserve for our review his contention that the plea was improperly entered (see People v. McNair, 13 N.Y.3d 821, 822, 892 N.Y.S.2d 822, 920 N.E.2d 929 ; People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. Pitcher, 126 A.D.3d 1471, 1472, 6 N.Y.S.3d 352, lv. denied 25 N.Y.3d 1169, 15 N.Y.S.3d 301, 36 N.E.3d 104 ). This case does not fall into the "rare exception to the preservation requirement set forth in Lopez because nothing in the plea allocution calls into question the voluntariness of the plea or casts

134 A.D.3d 1471

‘significant doubt’ upon his guilt" (Pitcher, 126 A.D.3d at 1472, 6 N.Y.S.3d 352 ). Defendant waived his right to a hearing on restitution and therefore failed to preserve for our review his contention that County Court erred in its determination of the amount of restitution (see People v. Miller, 87 A.D.3d 1303, 1304, 930 N.Y.S.2d 143, lv. denied 18 N.Y.3d 926, 942 N.Y.S.2d 465, 965 N.E.2d 967 ; People v. Roots, 48 A.D.3d 1031, 1032, 850 N.Y.S.2d 767 ). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see Miller, 87 A.D.3d at 1304, 930 N.Y.S.2d 143 ). Defendant also failed to preserve for our review his contention that the court erred in imposing a collection surcharge of 10%, rather than 5%, of the amount of restitution, and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see People v. Kosty, 122 A.D.3d 1408, 1409, 996 N.Y.S.2d 449, lv. denied 24 N.Y.3d 1220, 4 N.Y.S.3d 608, 28 N.E.3d 44 ; People v. Kirkland, 105 A.D.3d 1337, 1338–1339, 963 N.Y.S.2d 793, lv. denied 21 N.Y.3d 1043, 972 N.Y.S.2d 540, 995 N.E.2d 856 ).

21 N.Y.S.3d 523

Defendant next contends that the court did not comply with CPL 400.15 in sentencing him as a second violent felony offender. Defendant failed to preserve that contention for our review (see People v. Judd, 111 A.D.3d 1421, 1423, 975 N.Y.S.2d 312, lv. denied 23 N.Y.3d 1039, 993 N.Y.S.2d 253, 17 N.E.3d 508 ; see also People v. Loper, ...