Opinion
2014-05-2
The PEOPLE of the State of New York, Respondent v. Samuel L. RIVALDO, Defendant–Appellant.
Appeal from a judgment of the Monroe County Court (Stephen T. Miller, A.J.), rendered June 2, 2009. The judgment convicted defendant, upon his plea of guilty, of grand larceny in the second degree. Timothy P. Donaher, Public Defender, Rochester (James Eckert of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Stephen X. O'Brien of Counsel), for Respondent.
Appeal from a judgment of the Monroe County Court (Stephen T. Miller, A.J.), rendered June 2, 2009. The judgment convicted defendant, upon his plea of guilty, of grand larceny in the second degree.
Timothy P. Donaher, Public Defender, Rochester (James Eckert of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Stephen X. O'Brien of Counsel), for Respondent.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon his plea of guilty of grand larceny in the second degree (Penal Law § 155.40[1] ). On this record, we conclude that defendant's challenge to the amount of the monthly restitution payments ordered by County Court is not foreclosed by his valid waiver of the right to appeal because the amount of those monthly payments was not included in the terms of the plea agreement ( see People v. Tessitore, 101 A.D.3d 1621, 1622, 956 N.Y.S.2d 372,lv. denied20 N.Y.3d 1104, 965 N.Y.S.2d 800, 988 N.E.2d 538). Even assuming, arguendo, that defendant preserved for our review his challenge to the amount of the monthly restitution payments ( see generally People v. Connors, 91 A.D.3d 1340, 1341–1342, 937 N.Y.S.2d 492,lv. denied 18 N.Y.3d 956, 944 N.Y.S.2d 485, 967 N.E.2d 710;People v. Farewell, 90 A.D.3d 1502, 1503, 934 N.Y.S.2d 884,lv. denied18 N.Y.3d 957, 944 N.Y.S.2d 486, 967 N.E.2d 711), we conclude that it lacks merit ( see generally People v. Zimmerman, 12 A.D.3d 1105, 1105, 784 N.Y.S.2d 405,lv. denied4 N.Y.3d 750, 790 N.Y.S.2d 662, 824 N.E.2d 63).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed. SCUDDER, P.J., FAHEY, PERADOTTO, and SCONIERS, JJ., concur.