People v. Diola

239 A.D.2d 961, 659 N.Y.S.2d 599, 1997 N.Y. App. Div. LEXIS 6431

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 30, 1997
• Status: Published

Opinion

Judgment unanimously modified on the law and as modified affirmed and matter remitted to Onondaga County Court for further proceedings in accordance with the following Memorandum: Because defendant does not contend that the waiver of his right to appeal was constitutionally defective or that there is a public policy impediment to enforcing the waiver, appellate review of his contention regarding the sufficiency of the guilty plea is foreclosed. Review of the legality of the sentence is not foreclosed (see, People v Callahan, 80 NY2d 273; People v Seaberg, 74 NY2d 1).

Contrary to defendant’s contention, the record establishes that defendant was served with the predicate felony statement in compliance with CPL 400.21 (2). County Court properly determined that defendant waived his right to controvert the allegations of the statement by failing to appear for sentencing as ordered (see, People v Seppinni, 119 Mise 2d 125).

There is no merit to defendant’s contentions that the court erred in failing to fix the amount of restitution at sentencing, precluded defendant from being heard on the matter and improperly delegated the task to the probation authorities. As the People concede, remittal is necessary because, although the court determined the amount of restitution, it held the imposition of restitution in abeyance while defendant was a fugitive. Indeed, on appeal defendant does not contend in the alternative that the amount of restitution is erroneous. We modify the judgment, therefore, by directing defendant to pay restitution in the amount of $10,772.16, and we remit the matter to Onondaga County Court to direct the manner of payment. (Appeal from Judgment of Onondaga County Court, McCarthy, J.—Grand Larceny, 4th Degree.) Present—Green, J. P., Pine, Lawton, Boehm and Fallon, JJ.