People v. Straw

Feb 11, 2010
Versions:70 A.D.3d 1341
894 N.Y.S.2d 706

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

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of burglary in the third degree (Penal Law § 140.20) and criminal possession of stolen property in the fourth degree (§ 165.45 [5]). We reject the contention of defendant that his waiver of the right to appeal was not knowingly, voluntarily, and intelligently entered (see People v Lopez, 6 NY3d 248, 256 [2006]). “No particular litany is required for an effective waiver of the right to appeal” (People v McDonald, 270 AD2d 955 [2000], lv denied 95 NY2d 800 [2000]; see People v Callahan, 80 NY2d 273, 283 [1992]), and the responses of defendant to Supreme Court‘s questions during the plea colloquy establish that he understood the proceedings and voluntarily waived the right to appeal (see People v Tantao, 41 AD3d 1274 [2007], lv denied 9 NY3d 882 [2007]). The valid waiver by defendant of the right to appeal encompasses his challenge to the severity of the sentence (see People v Hidalgo, 91 NY2d 733, 737 [1998]), but it does not encompass defendant‘s challenge to the amount of restitution ordered inasmuch as that amount was not included in the terms of the plea agreement (see People v Lovett, 8 AD3d 1007 [2004], lv denied 3 NY3d 673, 677 [2004]; cf. People v Gordon, 43 AD3d 1330 [2007], lv denied 9 NY3d 1006 [2007]). Contrary to defendant‘s contention, however, the People met their burden of establishing the victim‘s out-of-pocket loss by a preponderance of the evidence (see CPL 400.30 [4]; People v Tzitzikalakis, 8 NY3d 217, 221 [2007]). Present—Smith, J.P., Centra, Fahey, Green and Pine, JJ.