State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: December 11, 2014 105577 

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THE PEOPLE OF THE STATE OF

 NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

MICHELLE A. DISOTELL,

Appellant.

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Calendar Date: November 12, 2014

Before: Peters, P.J., Lahtinen, Rose and Lynch, JJ.

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John A. Cirando, Syracuse, for appellant.

Alexander Lesyk, Special Prosecutor, Norwood, for

respondent.

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Rose, J.

Appeal from a judgment of the County Court of St. Lawrence

County (Richards, J.), rendered November 20, 2012, convicting

defendant upon her plea of guilty of the crimes of welfare fraud

in the third degree and criminal possession of a forged

instrument in the second degree (three counts).

In satisfaction of a 55-count indictment and other pending

charges, defendant pleaded guilty to welfare fraud in the third

degree and three counts of criminal possession of a forged

instrument in the second degree and purportedly waived her right
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to appeal.1 The plea agreement contemplated that defendant would

receive an aggregate probation sentence of five years if she

successfully completed the Judicial Diversion Program and a term

of imprisonment if she did not. Defendant was thereafter charged

with violating the terms of that program in multiple respects,

and was terminated from the program after waiving her right to a

hearing and admitting to the charges (see CPL 216.05 [9]). 

County Court imposed the agreed-upon aggregate prison sentence of

4 to 8 years, and further ordered defendant to pay restitution. 

County Court was then incorrectly advised that it had sentenced

defendant to a count of the indictment to which she had not

pleaded guilty and, five days later, resentenced her. Defendant

now appeals.2

Defendant's challenge to the voluntariness of her plea is

unpreserved due to her failure to seek appropriate postallocution

relief (see People v Fate, 117 AD3d 1327, 1328 [2014]). Contrary

to defendant's further contention, her "affirmative and

unequivocal responses to County Court's inquiry did not otherwise

signal doubt regarding [her] guilt or the voluntariness of [her]

plea" such as to bring this case within the narrow exception to

the preservation requirement (People v Threatt, 16 AD3d 706, 707

[2005]; see People v Aubrey, 73 AD3d 1393, 1394 [2010], lv

denied 16 NY3d 893 [2011]).

Although defendant next argues that County Court abused its

discretion in terminating her from the Judicial Diversion

Program, she admitted to violating the terms of the program in

return for a specified sentence and her failure to attack that

agreement before County Court leaves the issue unpreserved

(see People v Cooney, 120 AD3d 1445, 1446 [2014]). Her challenge

1 The People correctly concede that defendant's appeal

waiver is invalid (see People v Villnave, 117 AD3d 1178, 1178 n

[2014]).

2 The amended "notice of appeal misstates the date upon

which the judgment was rendered, [but] we exercise our discretion

to overlook the inaccuracy and treat the notice as valid" (People

v Pittman, 119 AD3d 1242, 1242 n [2014]; see CPL 460.10 [6]).
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to the amount of restitution as lacking record support is

similarly unpreserved, as she was aware that restitution would be

a component of the sentence and failed to request a restitution

hearing or otherwise dispute the amount of the award at

sentencing (see People v Horne, 97 NY2d 404, 414 n 3 [2002];

People v White, 119 AD3d 1286, 1287 [2014]). The record,

moreover, provides no compelling reason for us to exercise our

jurisdiction to reverse or modify in the interest of justice with

regard to either issue.

As a final matter, defendant pleaded guilty to counts 1, 8,

38 and 48 of the indictment. County Court resentenced her,

however, on counts 1, 8, 38 and 40. Inasmuch as County Court

failed to pronounce sentence upon each of the counts to which

defendant pleaded guilty, remittal for resentencing is necessary

(see CPL 380.20; People v Sturgis, 69 NY2d 816, 817-818 [1987];

People v Volfson, 69 AD3d 1123, 1125 [2010]).

Peters, P.J., Lahtinen and Lynch, JJ., concur.

ORDERED that the judgment is modified, on the law, by

vacating the sentence imposed; matter remitted to the County

Court of St. Lawrence County for resentencing; and, as so

modified, affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court