| People v Scheifla |
| 2018 NY Slip Op 07603 [166 AD3d 1531] |
| November 9, 2018 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v David Scheifla, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Kristin M. Preve of counsel), fordefendant-appellant.
John J. Flynn, District Attorney, Buffalo (Julie Bender Fiske of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Thomas P. Franczyk, J.),rendered June 8, 2016. The judgment convicted defendant, upon his plea of guilty, ofcriminal possession of a forged instrument in the second degree (10 counts) and petitlarceny (10 counts).
It is hereby ordered that the judgment so appealed from is unanimously modified onthe law by reducing the total amount of restitution to $897.38, and as modified thejudgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea ofguilty of 10 counts of criminal possession of a forged instrument in the second degree(Penal Law § 170.25) and 10 counts of petit larceny(§ 155.25). Contrary to defendant's contention, we conclude that "thewaiver of the right to appeal was not rendered invalid based on [County Court's] failureto require defendant to articulate the waiver in his own words" (People v Alsaifullah, 162AD3d 1483, 1484 [4th Dept 2018] [internal quotation marks omitted]; see People v Ripley, 94 AD3d1554, 1554-1555 [4th Dept 2012], lv denied 19 NY3d 976 [2012]). Here,"[t]he plea colloquy and the written waiver of the right to appeal signed [andacknowledged in court] by defendant demonstrate that [he] knowingly, intelligently andvoluntarily waived the right to appeal, including the right to appeal the severity of thesentence" (People v Hill,162 AD3d 1762, 1762 [4th Dept 2018], lv denied 32 NY3d 1004 [2018]).Defendant's valid waiver of the right to appeal forecloses his challenge to the severity ofthe sentence (see People vLopez, 6 NY3d 248, 255 [2006]; People v Hidalgo, 91 NY2d 733, 737[1998]; cf. People vMaracle, 19 NY3d 925, 928 [2012]).
Defendant contends, and the People correctly concede, that the amount of restitutionordered by the court violates Penal Law § 60.27 (1) and (4) (a). We notethat, inasmuch as defendant's contention concerns the legality of the sentence, it is notencompassed by the waiver of the right to appeal (see People v Johnson, 125 AD3d 1419, 1421 [4th Dept2015], lv denied 26 NY3d 1089 [2015]; People v Boatman, 110 AD3d 1463, 1463-1464 [4th Dept2013], lv denied 22 NY3d 1039 [2013]; see generally People v Suits, 158 AD3d 949, 950-952 [3dDept 2018]). We therefore modify the judgment by reducing the total amount ofrestitution from $942.38 to $897.38. Present—Whalen, P.J., Carni, Curran,Troutman and Winslow, JJ.