Opinion
KA 01-02255.
February 11, 2004.
Appeal from a judgment of the Supreme Court, Erie County (Mario J. Rossetti, A.J.), rendered October 19, 2001. The judgment convicted defendant, upon his plea of guilty, of attempted burglary in the third degree, scheme to defraud in the first degree and unauthorized use of a vehicle in the third degree.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (VINCENT F. GUGINO OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (DON I. DALLY OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Before: PRESENT: WISNER, J.P., KEHOE, GORSKI, LAWTON, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of attempted burglary in the third degree (Penal Law §§ 110.00, 140.20), scheme to defraud in the first degree (§ 190.65[1][a]) and unauthorized use of a vehicle in the third degree (§ 165.05[1]). Supreme Court "satisfied its duty to conduct a sufficient inquiry concerning whether defendant's waiver of the right to appeal was voluntary, knowing and intelligent," and that waiver encompasses the contention of defendant that the court abused its discretion in denying him youthful offender treatment ( People v. Brown, 303 A.D.2d 989, 990). The challenge by defendant to the amount of restitution is not foreclosed by his waiver of the right to appeal because the amount of restitution was not included in the terms of the plea agreement ( see People v. Talley, 300 A.D.2d 1038, lv denied 100 N.Y.2d 566). However, defendant waived his challenge to the restitution amount when he failed to object to that amount at sentencing ( see People v. Huffman, 288 A.D.2d 907, 908, lv denied 97 N.Y.2d 755). In any event, the court properly determined restitution after hearing evidence with respect to the amount requested ( cf. People v. Jordan, 292 A.D.2d 860, 861, lv denied 98 N.Y.2d 698; People v. Oehler, 278 A.D.2d 807, 808).