| People v Tessitore |
| 2012 NY Slip Op 08897 [101 AD3d 1621] |
| December 21, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Christopher W. Tessitore, Appellant. |
—[*1] Jon E. Budelmann, District Attorney, Auburn (Brian N. Bauersfeld of counsel), forrespondent.
Appeal from a judgment of the Cayuga County Court (Mark H. Fandrich, A.J.), renderedMay 3, 2011. The judgment convicted defendant, upon his plea of guilty, of attempted murder inthe second 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 murder in the second degree (Penal Law §§ 110.00, 125.25 [1]),defendant contends that the sentence is unduly harsh and severe and that the award of restitutionis unlawful. Defendant's challenge to the severity of the sentence is encompassed by his validwaiver of the right to appeal (see Peoplev Lopez, 6 NY3d 248, 255-256 [2006]; People v Harris, 94 AD3d 1484, 1485 [2012], lv denied 19NY3d 961 [2012]; People vGordon, 89 AD3d 1466, 1466 [2011], lv denied 18 NY3d 957 [2012]).
Defendant's challenge "to the amount of restitution is not foreclosed by his waiver of theright to appeal because the amount of restitution was not included in the terms of the pleaagreement" (People v Sweeney, 4AD3d 769, 770 [2004], lv denied 2 NY3d 807 [2004]; see People v Spencer, 87 AD3d1284, 1285 [2011]). Defendant, however, failed to preserve his challenge to the restitutionamount for our review inasmuch as he did not object to that amount at sentencing (see People v Jorge N.T., 70 AD3d1456, 1457 [2010], lv denied 14 NY3d 889 [2010]; People v Hannig, 68 AD3d 1779,1780 [2009], lv denied 14 NY3d 801 [2010]), and in any event he affirmatively waivedhis right to a restitution hearing (see People v Huffman, 288 AD2d 907, 908 [2001],lv denied 97 NY2d 755 [2002]). Present—Scudder, P.J., Smith, Centra, Lindleyand Whalen, JJ.