| People v Brown |
| 2010 NY Slip Op 01166 [70 AD3d 1378] |
| February 11, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Randy W.Brown, Appellant. (Appeal No. 1.) |
—[*1] John C. Tunney, District Attorney, Bath, for respondent.
Appeal from a judgment of the Steuben County Court (Joseph W. Latham, J.), renderedApril 14, 2008. The judgment convicted defendant, upon his plea of guilty, of grand larceny inthe fourth degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from two judgments each convicting him upon his plea of guilty ofgrand larceny in the fourth degree (Penal Law § 155.30 [1]), defendant contends thatCounty Court erred in delegating its authority to determine the amount of restitution to beimposed to the Probation Department. Although that contention is not encompassed bydefendant's valid waiver of the right to appeal (see e.g. People v Dort, 277 AD2d 487[2000]; People v Denue, 275 AD2d 863 [2000]), we nevertheless conclude that it lacksmerit. It is well settled that the court "may call on [the Probation Department] to act as apreliminary fact finder and submit its recommendations in a written report" (People vFuller, 57 NY2d 152, 158 [1982]). Here, the court rather than the Probation Departmentfixed the amount of restitution and imposed that amount at the time of sentencing, and we thusconclude that there was no improper delegation of authority (cf. People v Beaudoin, 195AD2d 996 [1993], lv denied 82 NY2d 891 [1993]; People v Bentivegna, 145AD2d 899 [1988]).
Although "[t]he challenge by defendant to the amount of restitution is not foreclosed by his[valid] waiver of the right to appeal because the amount of restitution was not included in theterms of the plea agreement" (People vSweeney, 4 AD3d 769, 770 [2004], lv denied 2 NY3d 807 [2004]), we concludethat defendant waived that contention inasmuch as he expressly consented to the amount ofrestitution recommended by the Probation Department in the presentence report (seegenerally People v Huffman, 288 AD2d 907 [2001], lv denied 97 NY2d 755 [2002];People v Chambers, 242 AD2d 860 [1997]). Present—Smith, J.P., Carni, Pine andGorski, JJ.