People v. White

• Decision Date: 19 May 2016
• Docket Number: 107192.
• Parties: The PEOPLE of the State of New York, Respondent, v. Tracy J. WHITE Jr., Appellant.
• Court: New York Supreme Court — Appellate Division

139 A.D.3d 1260
31 N.Y.S.3d 669
2016 N.Y. Slip Op. 03917

The PEOPLE of the State of New York, Respondent,
v.
Tracy J. WHITE Jr., Appellant.

107192.

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

May 19, 2016.

31 N.Y.S.3d 670

Frank A. Sarat, Homer, for appellant.

Weeden A. Wetmore, District Attorney, Elmira (Susan Rider–Ulacco of counsel), for respondent.

Before: LAHTINEN, J.P., McCARTHY, DEVINE, CLARK and MULVEY, JJ.

MULVEY, J.

139 A.D.3d 1260

Appeal from a judgment of the County Court of Chemung County (Rich Jr., J.), rendered September 19, 2014, convicting defendant upon his plea of guilty of the crimes of robbery in the second degree (four counts) and grand larceny in the third degree (three counts).

Defendant was charged by indictment with four counts of robbery in the second degree and three counts of grand larceny in the third degree. Without any promise having been made as to the sentence to be imposed, defendant pleaded guilty as charged. Following a restitution hearing, County Court sentenced defendant to an aggregate prison term of 13 years, to be followed by five years of postrelease supervision, and ordered him to pay restitution in the amount of $68,662, plus a five percent surcharge. Defendant appeals.

Initially, as the record does not reflect that he made an appropriate postallocution motion, defendant's challenge to the voluntariness of his plea is unpreserved (see People v. Richardson, 132 A.D.3d 1022, 1023, 17 N.Y.S.3d 196 [2015] ; People v. Waite, 120 A.D.3d 1446, 1447, 994 N.Y.S.2d 201 [2014] ). Moreover, the narrow exception to the preservation rule was not triggered since defendant did not make any statements during the plea allocution that cast doubt upon his guilt or otherwise called into question the voluntariness of his plea (see

31 N.Y.S.3d 671

People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ; People v. Spellicy, 123 A.D.3d 1228, 1230, 998 N.Y.S.2d 519 [2014], lv. denied 25 N.Y.3d 992, 10 N.Y.S.3d 535, 32 N.E.3d 972 [2015] ). Similarly, in the absence of an objection at the time of sentencing, defendant failed to preserve his contention that County Court considered improper factors in imposing sentence (see People v. Colome–Rodriguez, 120 A.D.3d 1525, 1525–1526, 992 N.Y.S.2d 652 [2014], lv. denied 25 N.Y.3d 1161, 15 N.Y.S.3d 293, 36 N.E.3d 96 [2015] ; People v. Rosado, 300 A.D.2d 838, 840–841, 752 N.Y.S.2d 139 [2002], lv. denied 99 N.Y.2d 619, 757 N.Y.S.2d 830, 787 N.E.2d 1176 [2003] ; People v. Anonymous, 293 A.D.2d 374, 374, 740 N.Y.S.2d 212 [2002], lv. denied 98 N.Y.2d 729, 749 N.Y.S.2d 479, 779 N.E.2d 190 [2002] ).

Lastly, defendant argues that County Court erred in ordering him to pay $19,149 in restitution to Finger Lakes Healthcare Federal Credit Union to cover the cost of hiring armed security guards for a period of...