People v. Scott

Feb 4, 2005
Appeal No. 1
Versions:15 A.D.3d 883
788 N.Y.S.2d 798

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of scheme to defraud in the first degree (Penal Law § 190.65 [1]). By failing to move to withdraw his plea of guilty or to vacate the judgment of conviction, defendant failed to preserve for our review his challenge to the factual sufficiency of the plea allocution (see People v Lopez, 71 NY2d 662, 665 [1988]; People v Thoreck, 303 AD2d 982, 983 [2003]; People v James, 299 AD2d 932, 932-933 [2002], lv denied 99 NY2d 583 [2003]). This case does not fall within the narrow exception to the preservation doctrine (see People v Toxey, 86 NY2d 725, 726 [1995], rearg denied 86 NY2d 839 [1995]; Thoreck, 303 AD2d at 983; People v Williams, 295 AD2d 918, 919 [2002], lv denied 98 NY2d 714 [2002]). County Court‘s “duty to inquire further is not triggered merely by the failure of a pleading defendant . . . to recite every element of the crime pleaded to” (Lopez, 71 NY2d at 666 n 2).

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of attempted grand larceny in the fourth degree (Penal Law §§ 110.00, 155.30 [1]), sentencing him to probation and ordering him to pay $5,000 in restitution for certain restaurant equipment. Defendant failed to preserve for our review his contention that the person to whom County Court ordered restitution is not the victim of the crime (see CPL 470.05 [2]). In any event, we reject that contention. At the time the equipment was stolen from the restaurant, the person to whom the court ordered restitution and her husband were the owners of the restaurant, including the equipment, and thus were victims of the theft of that equipment. Defendant next contends (and the People agree) that, although the court sentenced defendant to a period of five years’ probation, the period should have been three years. The amended certificate of conviction reflects the proper period of probation, and thus there is no need for this Court to modify the judgment (see CPL 60.60 [1]).