| People v Sweeney |
| 2010 NY Slip Op 09787 [79 AD3d 1789] |
| December 30, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Michael J.Sweeney, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Douglas A. Goerss of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Michael L. D'Amico, J.), rendered June25, 2009. The judgment convicted defendant, upon his plea of guilty, of attempted burglary in thesecond degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty ofattempted burglary in the second degree (Penal Law §§ 110.00, 140.25 [2]),defendant contends that his waiver of the right to appeal is invalid. We reject that contentioninasmuch as "County Court engage[d] the defendant in an adequate colloquy to ensure that thewaiver of the right to appeal was a knowing and voluntary choice" (People v James, 71 AD3d 1465,1465 [2010] [internal quotation marks omitted]). The further contention of defendant that thecourt erred in ordering him to pay restitution is encompassed by his valid waiver of the right toappeal inasmuch as the court informed defendant that it may impose restitution (cf. People v Kistner, 34 AD3d1316 [2006]). In any event, defendant failed to preserve that contention for our reviewbecause, although he objected to the amount of restitution at sentencing, he did not object to theimposition of restitution at the plea proceeding, at sentencing or before signing the confession ofjudgment (see generally People vHunter, 72 AD3d 1536 [2010];People v Therrien, 12 AD3d 1045 [2004]). Defendant's challenge to the severity of thesentence is also encompassed by the valid waiver of the right to appeal (see People vHidalgo, 91 NY2d 733, 737 [1998]). Present—Martoche, J.P., Centra, Fahey, Lindleyand Sconiers, JJ.