Opinion
2014-03-28
The PEOPLE of the State of New York, Respondent, v. Michael J. HILTON, also known as Michael Hilton, also known as Michael James Hilton, Defendant–Appellant.
Keliann M. Argy Elniski, Orchard Park, for Defendant–Appellant. Lawrence Friedman, District Attorney, Batavia (William G. Zickl of Counsel), for Respondent.
Keliann M. Argy Elniski, Orchard Park, for Defendant–Appellant. Lawrence Friedman, District Attorney, Batavia (William G. Zickl of Counsel), for Respondent.
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, SCONIERS AND WHALEN, JJ.
MEMORANDUM:
On appeal from a judgment convicting him upon his plea of guilty of burglary in the second degree (Penal Law § 140.25[2] ), defendant contends that his plea was not knowing, intelligent and voluntary because the People's offer required defendant to stipulate to an unspecified restitution amount, was coupled with the threat of additional charges, and required him to respond immediately to it during the plea proceeding. Although that contention survives defendant's valid waiver of the right to appeal, defendant failed to preserve it for our review by failing to move to withdraw the plea or to vacate the judgment of conviction ( see People v. Davis, 99 A.D.3d 1228, 1229, 951 N.Y.S.2d 808,lv. denied20 N.Y.3d 1010, 960 N.Y.S.2d 353, 984 N.E.2d 328;People v. Small, 82 A.D.3d 1451, 1452, 918 N.Y.S.2d 755,lv. denied17 N.Y.3d 801, 929 N.Y.S.2d 109, 952 N.E.2d 1104;People v. Swart, 20 A.D.3d 691, 692, 797 N.Y.S.2d 780). In any event, defendant's contention is without merit inasmuch as the record establishes that the plea was knowingly, intelligently and voluntarily entered ( see People v. Wolf, 88 A.D.3d 1266, 1267, 930 N.Y.S.2d 382,lv. denied18 N.Y.3d 863, 938 N.Y.S.2d 871, 962 N.E.2d 296;People v. Sartori, 8 A.D.3d 748, 749, 777 N.Y.S.2d 792;see also People v. Mullen, 77 A.D.3d 686, 686, 908 N.Y.S.2d 350). The valid waiver by defendant of the right to appeal encompasses his challenge to the severity of the sentence ( see People v. Lopez, 6 N.Y.3d 248, 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145;see generally People v. Hidalgo, 91 N.Y.2d 733, 737, 675 N.Y.S.2d 327, 698 N.E.2d 46).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.