SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

80 

KA 10-00244 

PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND MARTOCHE, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

JEFFREY F. FASO, DEFENDANT-APPELLANT. 

 

D.J. & J.A. CIRANDO, ESQS., SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR

DEFENDANT-APPELLANT.

JEFFREY F. FASO, DEFENDANT-APPELLANT PRO SE. 

 

Appeal from a judgment of the Allegany County Court (Thomas P.

Brown, J.), rendered January 7, 2009. The judgment convicted

defendant, upon his plea of guilty, of burglary in the second degree. 

It is hereby ORDERED that the judgment so appealed from is 

unanimously affirmed. 

Memorandum: Defendant appeals from a judgment convicting him

upon his plea of guilty of burglary in the second degree (Penal Law §

140.25 [2]). Defendant’s contention that County Court erred in

failing to offer him the opportunity to withdraw his guilty plea prior

to enhancing the sentence is not preserved for our review (see People

v VanDeViver, 56 AD3d 1118, lv denied 11 NY3d 931, 12 NY3d 788; People

v Perry, 252 AD2d 990, lv denied 92 NY2d 929). In any event, that

contention lacks merit. Defendant violated the plea agreement by

failing to comply with the conditions thereof, and thus the court “was

no longer bound by the plea promise and could properly impose an

enhanced sentence” (People v Figgins, 87 NY2d 840, 841; see

VanDeViver, 56 AD3d 1118; see also People v Gibson, 52 AD3d 1227). 

Defendant’s further contention that his plea was not knowingly,

intelligently and voluntarily entered is actually a challenge to the

factual sufficiency of the plea allocution (see People v Bullock, 78

AD3d 1697). That challenge is not preserved for our review (see

People v Broadwater, 69 AD3d 643, lv denied 14 NY3d 798), and it does

not fall within the narrow exception to the preservation requirement

(see People v Lopez, 71 NY2d 662, 666). In any event, that challenge

is without merit inasmuch as the plea allocution was not rendered

factually insufficient by defendant’s monosyllabic responses to the

court’s inquiries (see People v Morris, 78 AD3d 1613). 

Defendant failed to preserve for our review his contention in his

main and pro se supplemental briefs that the court was required to

conduct a hearing with respect to the amount of restitution inasmuch
-2- 80 

KA 10-00244 

as he neither requested such a hearing nor objected to the amount of

restitution at sentencing (see People v Wright, 79 AD3d 1789; see

generally People v Horne, 97 NY2d 404, 414 n 3). In any event,

defendant waived that contention because he stipulated to the amount

of restitution (see Wright, 79 AD3d 1789). To the extent that

defendant’s contention in his main brief that he was denied effective

assistance of counsel survives the plea (see People v Santos, 37 AD3d

1141, lv denied 8 NY3d 950), we conclude that it is lacking in merit

(see generally People v Ford, 86 NY2d 397, 404). The sentence is not

unduly harsh or severe. Finally, defendant’s contention in his pro se

supplemental brief that the People failed to honor the executed plea

agreement involves matters outside the record on appeal and thus is

not properly before us (see generally People v Egan, 6 AD3d 1206, lv

denied 3 NY3d 639).

Entered: March 25, 2011 Patricia L. Morgan

Clerk of the Court