Opinion
No. 965 KA 06-00419.
September 28, 2007.
Appeal from a judgment of the Erie County Court (Shirley Troutman, J.), rendered January 23, 2006. The judgment convicted defendant, upon his plea of guilty, of attempted criminal sale of a controlled substance in the third degree.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (PAUL B. CURTIN OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (J. MICHAEL MARION OF COUNSEL), FOR RESPONDENT.
Before: Present — Gorski, J.P., Smith, Centra, Fahey and Pine, JJ.
It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of attempted criminal sale of a controlled substance in the third degree (Penal Law §§ 110.00, 220.39). Contrary to the contention of defendant, the plea colloquy establishes that his waiver of the right to appeal was voluntary, knowing, and intelligent ( see People v Lococo, 92 NY2d 825, 827; People v Callahan, 80 NY2d 273, 280 ; People v Lovett, 8 AD3d 1007, lv denied 3 NY3d 677). The valid waiver by defendant of the right to appeal encompasses his challenge to the amount of restitution ordered inasmuch as that amount was included in the plea agreement ( see People v King, 20 AD3d 907, lv denied 5 NY3d 829; cf. Lovett, 8 AD3d at 1007-1008), and his challenge to the severity of the sentence likewise is encompassed by his waiver of the right to appeal ( see People v Lopez, 6 NY3d 248, 255; People v Reiser, 38 AD3d 1254).