| People v Perry |
| 2008 NY Slip Op 03828 [50 AD3d 1556] |
| April 25, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Shawn Perry,Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.), renderedFebruary 22, 2006. The judgment convicted defendant, upon his plea of guilty, of robbery in thefirst degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a plea of guilty, ofrobbery in the first degree (Penal Law § 160.15 [2]) and sentencing him as a juvenile to aterm of imprisonment and ordering him to pay restitution in the amount of $533. Although wereject the contention of defendant that his waiver of the right to appeal is invalid (see generally People v Lopez, 6 NY3d248, 256 [2006]), we agree with him that the waiver does not encompass his challenge to therestitution ordered by County Court inasmuch as the terms of the plea agreement did not includerestitution (see People v Kistner, 34AD3d 1316 [2006]). We conclude, however, that defendant did not preserve his challengefor our review, and we decline to exercise our power to review that challenge as a matter ofdiscretion in the interest of justice (cf. id.). We note in addition, that defendant "waivedhis challenge to the restitution amount when he failed to object to that amount at sentencing" (People v Sweeney, 4 AD3d 769,770 [2004], lv denied 2 NY3d 807 [2004]), or to request a hearing (see People v Hare, 27 AD3d 1171,1172 [2006], lv denied 6 NY3d 894 [2006]). Finally, the term of incarceration imposed isnot unduly harsh or severe. Present—Centra, J.P., Lunn, Peradotto, Green and Pine, JJ.