| People v Thomas |
| 2010 NY Slip Op 06875 [77 AD3d 1325] |
| October 1, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Brett H. Thomas,Appellant. |
—[*1] Donald H. Dodd, District Attorney, Oswego (Michael G. Cianfarano of counsel), forrespondent.
Appeal from a judgment of the Oswego County Court (Walter W. Hafner, Jr., J.), renderedOctober 29, 2007. The judgment convicted defendant, upon his plea of guilty, of burglary in the thirddegree (two counts) and grand larceny 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 guilty plea, of twocounts of burglary in the third degree (Penal Law § 140.20) and one count of grand larceny inthe third degree (§ 155.35). Contrary to the contention of defendant, his waiver of the right toappeal is valid inasmuch as the record of the plea proceedings establishes that County Court did notconflate the right to appeal with those rights automatically forfeited upon a guilty plea when it explaineddefendant's rights during the plea colloquy (see People v Dozier, 74 AD3d 1808 [2010]; People v Dillon, 67 AD3d 1382[2009]). We conclude that defendant's waiver of the right to appeal was knowingly, intelligently, andvoluntarily entered, and that it encompasses defendant's challenge to the severity of the sentence (see People v Lopez, 6 NY3d 248,255-256 [2006]). The valid waiver by defendant of the right to appeal also encompasses his challengeto the amount of restitution ordered inasmuch as the exact amount of restitution was included in the pleaagreement (see People v Gordon, 43AD3d 1330 [2007], lv denied 9 NY3d 1006 [2007]). Although the further contention ofdefendant that the plea was not voluntarily entered survives his waiver of the right to appeal, he failed topreserve that contention for our review because he failed to move to withdraw the plea or to vacate thejudgment of conviction (see People vDiaz, 62 AD3d 1252 [2009], lv denied 12 NY3d 924 [2009]), and we decline toexercise our power to review it as a matter of discretion in the interest of justice (see CPL470.15 [6] [a]). Present—Centra, J.P., Peradotto, Lindley, Sconiers and Gorski, JJ.