| People v Straw |
| 2010 NY Slip Op 01119 [70 AD3d 1341] |
| February 11, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v MatthewStraw, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Donna A. Milling of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (M. William Boller, A.J.),rendered June 19, 2008. The judgment convicted defendant, upon his plea of guilty, of criminalpossession of stolen property in the fourth degree and burglary in the third degree.
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 ofburglary in the third degree (Penal Law § 140.20) and criminal possession of stolenproperty in the fourth degree (§ 165.45 [5]). We reject the contention of defendant that hiswaiver of the right to appeal was not knowingly, voluntarily, and intelligently entered (see People v Lopez, 6 NY3d 248,256 [2006]). "No particular litany is required for an effective waiver of the right to appeal"(People v McDonald, 270 AD2d 955 [2000], lv denied 95 NY2d 800 [2000];see People v Callahan, 80 NY2d 273, 283 [1992]), and the responses of defendant toSupreme Court's questions during the plea colloquy establish that he understood the proceedingsand voluntarily waived the right to appeal (see People v Tantao, 41 AD3d 1274 [2007], lv denied 9NY3d 882 [2007]). The valid waiver by defendant of the right to appeal encompasses hischallenge to the severity of the sentence (see People v Hidalgo, 91 NY2d 733, 737[1998]), but it does not encompass defendant's challenge to the amount of restitution orderedinasmuch as that amount was not included in the terms of the plea agreement (see People v Lovett, 8 AD3d 1007[2004], lv denied 3 NY3d 673, 677 [2004]; cf. People v Gordon, 43 AD3d 1330 [2007], lv denied 9NY3d 1006 [2007]). Contrary to defendant's contention, however, the People met their burden ofestablishing the victim's out-of-pocket loss by a preponderance of the evidence (see CPL400.30 [4]; People v Tzitzikalakis,8 NY3d 217, 221 [2007]). Present—Smith, J.P., Centra, Fahey, Green and Pine, JJ.