People v. WillisPeople v. Willis
It is hereby ordered that the order so appealed from is unanimously affirmed.
Memorandum: On appeal from an order requiring him to pay restitution in the amount of $141,750, defendant contends that County Court erred in failing to conduct a hearing on the issue of his ability to pay restitution. Defendant failed to preserve that contention for our review (see People v Dillon, 90 AD3d 1468, 1468-1469 [2011], lv denied 19 NY3d 1025 [2012]). In any event, we conclude that it lacks merit. “Consideration of defendant‘s ability to pay was not required because restitution was ordered as part of a nonprobationary sentence that included a period of incarceration as a significant component” (People v Ford, 77 AD3d 1176, 1177 [2010], lv denied 17 NY3d 816 [2011]; see People v Henry, 64 AD3d 804, 807 [2009], lv denied 13 NY3d 860 [2009]). We thus reject defendant‘s further contention that he received ineffective assistance of counsel based on defense counsel‘s failure to request a hearing on defendant‘s ability to pay restitution. Defense counsel was not ineffective for failing to request a hearing that had no “colorable basis” (People v Rivera, 71 NY2d 705, 709 [1988]; see Ford, 77 AD3d at 1177).
Present—Centra, J.P, Fahey, Carni, Sconiers and Martoche, JJ.