Opinion
2011-12-23
The PEOPLE of the State of New York, Respondent, v. Judd A. FAREWELL, Jr., Defendant–Appellant. (Appeal No. 1.)
Appeal from a judgment of the Orleans County Court (James P. Punch, J.), rendered December 7, 2009. The judgment convicted defendant, upon his plea of guilty, of attempted burglary in the second degree.Seth Azria, Syracuse, for defendant–appellant. Joseph V. Cardone, District Attorney, Albion (Katherine Bogan of counsel), for respondent.
Appeal from a judgment of the Orleans County Court (James P. Punch, J.), rendered December 7, 2009. The judgment convicted defendant, upon his plea of guilty, of attempted burglary in the second degree.Seth Azria, Syracuse, for defendant–appellant. Joseph V. Cardone, District Attorney, Albion (Katherine Bogan of counsel), for respondent.
MEMORANDUM:
In appeal No. 1, defendant appeals from a judgment convicting him upon his plea of guilty of attempted burglary in the second degree (Penal Law §§ 110.00, 140.25[2] ) and, in appeal No. 2, he appeals from a judgment convicting him upon his plea of guilty of burglary in the third degree (§ 140.20). Defendant's contention in each appeal that County Court abused its discretion in denying his request for youthful offender status is encompassed by his valid waiver of the right to appeal ( see People v. Elshabazz, 81 A.D.3d 1429, 916 N.Y.S.2d 883, lv. denied 16 N.Y.3d 858, 923 N.Y.S.2d 420, 947 N.E.2d 1199; People v. Capps, 63 A.D.3d 1632, 879 N.Y.S.2d 872, lv. denied 13 N.Y.3d 795, 887 N.Y.S.2d 544, 916 N.E.2d 439). Defendant's challenge to the severity of the sentence in each appeal is also encompassed by that valid waiver ( see People v. Lopez, 6 N.Y.3d 248, 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145; People v. VanDeViver, 56 A.D.3d 1118, 1119, 867 N.Y.S.2d 586, lv. denied 11 N.Y.3d 931, 874 N.Y.S.2d 16, 902 N.E.2d 450, 12 N.Y.3d 788, 879 N.Y.S.2d 65, 906 N.E.2d 1099).
Defendant further contends in each appeal that the court should have conducted a hearing before ordering him to pay restitution. Inasmuch as defendant expressly waived his right to a hearing and agreed to the amount of restitution at sentencing, that contention is without merit ( see People v. McElrath, 241 A.D.2d 932, 661 N.Y.S.2d 361).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.