New York Appellate Division Reports

PEOPLE v. BIRCH, 100211 [3d Dept 12-21-2006] 2006 NY Slip
v. MARY BIRCH, Appellant. 100211. Appellate Division of
the Supreme Court of New York, Third Department. Decided
and Entered: December 21, 2006.

Appeal from a judgment of the County Court of Columbia
County (Nichols, J.), rendered April 7, 2006, which revoked
defendant’s probation and imposed a sentence of

David Seth Michaels, Spencertown, for appellant.

Eliot Spitzer, Attorney General, New York City .

(Megan P. Davis of counsel), for respondent.




Upon her plea of guilty in 2004, defendant was convicted of
grand larceny in the third degree and insurance fraud in
the third degree for having obtained Social Security
disability benefits upon a false claim. County Court
sentenced defendant to 10 days in jail, five years of
probation, and restitution totaling $87,109.84 to be paid in
three installments in 2004 and 2005. She did not pay the
third installment in the amount of $50,109.84 which was due
May 25, 2005. A complaint for violation of probation was
filed, and defendant executed a violation of probation form
on November 15, 2005, in which she admitted the violation.
She waived her right to appeal, but preserved her right to
appeal her sentence if there was no jointly recommended
sentence, as was the case. On April 7, 2006, County Court
sentenced defendant to a period of incarceration of 1 to 4
years; the unpaid restitution remains part of her sentence.
Defendant appeals.[fn1]

The issues that defendant raises on appeal with respect to
her sentence fail on their merits. Undermining defendant’s
claim of inability to pay and that she is being imprisoned
for indigency, the record shows that County Court adjourned
sentencing partly to afford defendant adequate opportunity
to make good on her expressed plans to pay the restitution.
Even on the date of sentencing, the court received
information that defendant had potential means to pay the
restitution (by sale of a restaurant). Nor do the
provisions of CPL 420.10 avail defendant. County Court has
not required that defendant be imprisoned “until . . .
restitution . . . is satisfied” (CPL 420.10 [3]), and
defendant has made no explicit application for resentencing
(see People v Amorosi, 96 NY2d 180 [2001]). With respect to
an unrelated confession of judgment that had been entered
against defendant and its priority, the court did not
misconstrue its import, including its impact on defendant’s
credibility, and brief factual testimony about it at
sentencing (not objected to by defendant) was harmless
because the confession of judgment had previously been
brought to the court’s attention.

Finally, we do not find that the interest of justice
warrants a reduction in defendant’s sentence. Defendant
failed to meet her restitution obligation under a
bargained-for sentence which featured her plea to reduced
charges and a probation term rather than incarceration. The
sentence subsequently imposed after violation of probation
was less than the maximum allowable and less than that
recommended by the prosecution (see e.g. People v Pestone,
269 AD2d 546 [2000], lv denied 95 NY2d 801 [2000]; Matter
of Martinich, 258 AD2d 742 [1999], lv denied 93 NY2d 927
[1999]; Matter of Egelston, 171 AD2d 904 [1991]; People v
Felman, 141 AD2d 889 [1988], lv denied 72 NY2d 918 [1988]).

Mercure, J.P., Crew III, Peters and Carpinello, JJ.,

ORDERED that the judgment is affirmed.

[fn1] On June 7, 2006, defendant’s application, pursuant to
CPL 460.50, for an order staying execution of judgment
pending appeal and for release on recognizance or bail was
denied by a Justice of this Court.