People v Smith

People v Smith 2010 NY Slip Op 05198 [74 AD3d 1865] June 11, 2010 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 25, 2010

The People of the State of New York, Respondent, v John W. Smith, III, Appellant.

—[*1] Cynthia B. Brennan, Auburn, for defendant-appellant.

Jon E. Budelmann, District Attorney, Auburn (Christopher T. Valdina of counsel), for respondent.

Appeal from a judgment of the Cayuga County Court (Mark H. Fandrich, J.), rendered March 3, 2009. The judgment convicted defendant, upon his plea of guilty, of burglary in the third degree.

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

Memorandum: On appeal from a judgment convicting him upon his guilty plea of burglary in the third degree (Penal Law § 140.20), defendant contends that County Court erred in ordering him to pay a specified amount of restitution without conducting a hearing to determine the amount. Defendant failed to preserve that contention for our review (see People v Hannig, 68 AD3d 1779 [2009], lv denied 14 NY3d 801 [2010]), and we decline to exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). The valid waiver by defendant of the right to appeal encompasses his challenge to the severity of the sentence (see People v Lopez, 6 NY3d 248, 256 [2006]). Present—Smith, J.P., Lindley, Sconiers, Pine and Gorski, JJ.