People v. Moore

Decision Date02 January 2015
Citation1 N.Y.S.3d 693,124 A.D.3d 1386
Parties The PEOPLE of the State of New York, Respondent, v. Kurt MOORE, Defendant–Appellant.
CourtNew York Supreme Court — Appellate Division

Frank H. Hiscock Legal Aid Society, Syracuse (Piotr Banasiak of Counsel), for DefendantAppellant.

William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.

PRESENT: SMITH, J.P., FAHEY, WHALEN, and DeJOSEPH, JJ.

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 appealable (see CPL 450.10 ; People v. Fricchione, 43 A.D.3d 410, 411, 840 N.Y.S.2d 422 ), "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 A.D.3d 747, 749 n. 1, 907 N.Y.S.2d 353 ). 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 A.D.2d 925, 926, 662 N.Y.S.2d 894 ).

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 A.D.2d 962, 962, 750 N.Y.S.2d 716, lv. denied 99 N.Y.2d 581, 755 N.Y.S.2d 717, 785 N.E.2d 739 ; cf. People v. Brady, 59 A.D.3d 748, 749, 872 N.Y.S.2d 246 ). We therefore modify the judgment by vacating the order of restitution.

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by vacating the postsentence restitution order and as modified the judgment is affirmed.

To continue reading

Request your trial
4 cases
  • People v. Shanley
    • United States
    • New York Supreme Court — Appellate Division
    • December 23, 2020
    ...thus] our review of such order[ ] is appropriate’ upon defendant's appeal from the judgment of conviction" ( People v. Moore , 124 A.D.3d 1386, 1387, 1 N.Y.S.3d 693 [4th Dept. 2015] ). We nevertheless reject defendant's contention that the evidence at the restitution hearing was insufficien......
  • People v. Schmiege, 275
    • United States
    • New York Supreme Court — Appellate Division
    • May 3, 2019
    ...sentencing hearing implicates the legality of his sentence and thus survives his valid appeal waiver (see People v. Moore , 124 A.D.3d 1386, 1387, 1 N.Y.S.3d 693 [4th Dept. 2015] ; People v. Carpenter , 19 A.D.3d 730, 731, 796 N.Y.S.2d 730 [3d Dept. 2005], lv denied 5 N.Y.3d 804, 803 N.Y.S.......
  • People v. Schmiege
    • United States
    • New York Supreme Court — Appellate Division
    • June 28, 2019
    ...implicates the legality of his sentence and thus survives his valid waiver of the right to appeal (see People v. Moore, 124 A.D.3d 1386, 1387, 1 N.Y.S.3d 693 [4th Dept. 2015] ; People v. Carpenter, 19 A.D.3d 730, 731, 796 N.Y.S.2d 730 [3d Dept. 2005], lv denied 5 N.Y.3d 804, 803 N.Y.S.2d 33......
  • People v. Webber
    • United States
    • New York Supreme Court — Appellate Division
    • June 19, 2015
    ...contained in any other accusatory instrument disposed of by’ defendant's plea of guilty to the offense on appeal” (People v. Moore, 124 A.D.3d 1386, 1387, 1 N.Y.S.3d 693 ). We therefore vacate the order on appeal.It is hereby ORDERED that the order so appealed from is unanimously ...

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT