People v. Perry

Apr 25, 2008
Versions:50 A.D.3d 1556
855 N.Y.S.2d 798

It is hereby ordered that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him, upon a plea of guilty, of robbery in the first degree (Penal Law § 160.15 [2]) and sentencing him as a juvenile to a term of imprisonment and ordering him to pay restitution in the amount of $533. Although we reject the contention of defendant that his waiver of the right to appeal is invalid (see generally People v Lopez, 6 NY3d 248, 256 [2006]), we agree with him that the waiver does not encompass his challenge to the restitution ordered by County Court inasmuch as the terms of the plea agreement did not include restitution (see People v Kistner, 34 AD3d 1316 [2006]). We conclude, however, that defendant did not preserve his challenge for our review, and we decline to exercise our power to review that challenge as a matter of discretion in the interest of justice (cf. id.). We note in addition, that defendant “waived his challenge to the restitution amount when he failed to object to that amount at sentencing” (People v Sweeney, 4 AD3d 769, 770 [2004], lv denied 2 NY3d 807 [2004]), or to request a hearing (see People v Hare, 27 AD3d 1171, 1172 [2006], lv denied 6 NY3d 894 [2006]). Finally, the term of incarceration imposed is not unduly harsh or severe. Present—Centra, J.P., Lunn, Peradotto, Green and Pine, JJ.