Opinion
2012-12-21
The PEOPLE of the State of New York, Respondent, v. Christopher W. TESSITORE, Defendant–Appellant.
Charles A. Marangola, Moravia, for Defendant–Appellant. Jon E. Budelmann, District Attorney, Auburn (Brian N. Bauersfeld of Counsel), for Respondent.
Charles A. Marangola, Moravia, for Defendant–Appellant. Jon E. Budelmann, District Attorney, Auburn (Brian N. Bauersfeld of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., SMITH, CENTRA, LINDLEY, AND WHALEN, JJ.
MEMORANDUM:
On appeal from a judgment convicting him, upon his plea of guilty, of attempted murder in the second degree (Penal Law §§ 110.00, 125.25[1] ), defendant contends that the sentence is unduly harsh and severe and that the award of restitution is unlawful. Defendant's challenge to the severity of the sentence is encompassed by his valid waiver of the right to appeal ( see People v. Lopez, 6 N.Y.3d 248, 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145;People v. Harris, 94 A.D.3d 1484, 1485, 942 N.Y.S.2d 854,lv. denied19 N.Y.3d 961, 950 N.Y.S.2d 113, 973 N.E.2d 211;People v. Gordon, 89 A.D.3d 1466, 1466, 932 N.Y.S.2d 410,lv. denied18 N.Y.3d 957, 944 N.Y.S.2d 486, 967 N.E.2d 711).
Defendant's challenge “to the amount of restitution is not foreclosed by his waiver of the right to appeal because the amount of restitution was not included in the terms of the plea agreement” ( People v. Sweeney, 4 A.D.3d 769, 770, 771 N.Y.S.2d 760,lv. denied2 N.Y.3d 807, 781 N.Y.S.2d 307, 814 N.E.2d 479;see People v. Spencer, 87 A.D.3d 1284, 1285, 930 N.Y.S.2d 326). Defendant, however, failed to preserve his challenge to the restitution amount for our review inasmuch as he did not object to that amount at sentencing ( see People v. Jorge N.T., 70 A.D.3d 1456, 1457, 894 N.Y.S.2d 625,lv. denied14 N.Y.3d 889, 903 N.Y.S.2d 777, 929 N.E.2d 1012;People v. Hannig, 68 A.D.3d 1779, 1780, 890 N.Y.S.2d 856,lv. denied14 N.Y.3d 801, 899 N.Y.S.2d 135, 925 N.E.2d 939), and in any event he affirmatively waived his right to a restitution hearing ( see People v. Huffman, 288 A.D.2d 907, 908, 732 N.Y.S.2d 391,lv. denied97 N.Y.2d 755, 742 N.Y.S.2d 615, 769 N.E.2d 361).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.