Opinion
593 KA 18-02056
09-30-2022
The PEOPLE of the State of New York, Respondent, v. Devon L. THOMAS, Defendant-Appellant.
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (CARA A. WALDMAN OF COUNSEL), FOR DEFENDANT-APPELLANT. JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (CARA A. WALDMAN OF COUNSEL), FOR DEFENDANT-APPELLANT.
JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CENTRA, PERADOTTO, AND NEMOYER, JJ.
MEMORANDUM AND ORDER 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, inter alia, three counts of burglary in the second degree ( Penal Law § 140.25 [2] ). Defendant contends that the evidence at the restitution hearing was insufficient to support the amount of restitution ordered. That contention is not encompassed by defendant's purported waiver of the right to appeal because any issue regarding any award of restitution was specifically excluded from such waiver (see People v. Johnson , 50 A.D.3d 1567, 1567, 855 N.Y.S.2d 401 [4th Dept. 2008] ). We nevertheless conclude that defendant's contention is without merit inasmuch as the People met their burden of establishing the amount of restitution by a preponderance of the evidence (see People v. Eatmon , 207 A.D.3d 1160, 1161-1162, 170 N.Y.S.3d 785 [4th Dept. 2022] ; People v. Shanley , 189 A.D.3d 2108, 2109-2110, 134 N.Y.S.3d 856 [4th Dept. 2020], lv denied 36 N.Y.3d 1100, 144 N.Y.S.3d 117, 167 N.E.3d 1252 [2021] ).
As defendant further contends and the People correctly concede, his waiver of the right to appeal is invalid (see People v. Rhode , 194 A.D.3d 1425, 1426, 143 N.Y.S.3d 650 [4th Dept. 2021], lv denied 37 N.Y.3d 994, 152 N.Y.S.3d 399, 174 N.E.3d 339 [2021] ; see generally People v. Thomas , 34 N.Y.3d 545, 564-567, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied ––– U.S. ––––, 140 S.Ct. 2634, 206 L.Ed.2d 512 [2020] ) and thus does not preclude our review of defendant's challenge to the severity of his sentence. We nevertheless conclude that the negotiated sentence is not unduly harsh or severe.