People v Giovanni

People v Giovanni 2008 NY Slip Op 06225 [53 AD3d 778] July 10, 2008 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, September 3, 2008

The People of the State of New York, Respondent, v Yvette M. Giovanni, Appellant.

—[*1] James J. Brearton, Latham, for appellant.

James A. Murphy III, District Attorney, Ballston Spa (Nicholas E. Tishler of counsel), for respondent.

Peters, J. Appeal from a judgment of the County Court of Saratoga County (Scarano, J.), rendered September 12, 2006, convicting defendant upon her plea of guilty of the crime of grand larceny in the third degree.

Over the course of several months, defendant forged her employer's business checks and deposited the funds into her own personal account. After misappropriating more than $37,000 and altering her employer's records to falsely reflect payments to creditors, she was arrested and charged with grand larceny in the third degree. Defendant subsequently waived indictment and pleaded guilty to a superior court information charging her with grand larceny in the third degree. Thereafter, she executed a written waiver of the right to appeal and was sentenced as a second felony offender to an agreed-upon prison term of 2½ to 5 years, in addition to restitution in the amount of $91,865.74.

On appeal, defendant argues that her waiver of appeal was entered into involuntarily. We disagree. County Court questioned defendant extensively concerning her understanding of the plea agreement and the rights that she was surrendering as a result of her guilty plea and waiver of her right to appeal. In response, defendant consistently reassured County Court that she was aware of, among other things, her right to plead not guilty and her right to appeal, and was choosing to waive both voluntarily. Defendant's oral concessions were buttressed by her [*2]written waiver of appeal, which explicitly enumerated the rights that were to be relinquished and acknowledged that defendant had discussed the consequences of the waiver with counsel. Under these circumstances, we find both defendant's guilty plea and her waiver of appeal to have been knowing, voluntary and intelligent (see People v Hogabone, 49 AD3d 1027, 1028 [2008]; People v Vallance, 49 AD3d 917, 918 [2008], lv denied 10 NY3d 845 [2008]; People v Lewis, 48 AD3d 880, 881 [2008]). Having found a valid waiver of the right to appeal, defendant's challenge to her sentence is precluded (see People v Walker, 47 AD3d 965, 966 [2008]; People v McKeney, 45 AD3d 974, 975 [2007]; People v Fogarty, 35 AD3d 957, 958 [2006], lv denied 8 NY3d 922 [2007]).

Similarly unavailing is defendant's contention that County Court erred in making a determination as to restitution without first conducting a hearing (see Penal Law § 60.27; People v Tzitzikalakis, 8 NY3d 217, 221 [2007]). Notably, the calculated restitution was an integral part of defendant's agreed-upon plea bargain, which she was apprised of and acknowledged on the record several times. Therefore, inasmuch as defendant failed to challenge County Court's restitution determination or request a hearing on the issue, her current argument is unpreserved and we decline to reverse said determination in the interest of justice (see People v Stephens, 51 AD3d 1225 [2008]; People v Golgoski, 40 AD3d 1138, 1138 [2007]; People v Williams, 28 AD3d 1005, 1011 [2006], lv denied 7 NY3d 819 [2006]).

Cardona, P.J., Spain, Carpinello and Stein, JJ., concur. Ordered that the judgment is affirmed.