PEOPLE v. PERRY (2008)

 Defendant appeals from a judgment convicting him, upon a plea of guilty, of robbery in the first degree (Penal Law § 160.15[2] ) and sentencing him as a juvenile to a term of imprisonment and ordering him to pay restitution in the amount of $533.   Although we reject the contention of defendant that his waiver of the right to appeal is invalid (see generally People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145), we agree with him that the waiver does not encompass his challenge to the restitution ordered by County Court inasmuch as the terms of the plea agreement did not include restitution (see People v. Kistner, 34 A.D.3d 1316, 823 N.Y.S.2d 795).   We conclude, however, that defendant did not preserve his challenge for our review, and we decline to exercise our power to review that challenge as a matter of discretion in the interest of justice (cf. id.).   We note in addition, that defendant “waived his challenge to the restitution amount when he failed to object to that amount at sentencing” (People v. Sweeney, 4 A.D.3d 769, 770, 771 N.Y.S.2d 760, lv. denied 2 N.Y.3d 807, 781 N.Y.S.2d 307, 814 N.E.2d 479), or to request a hearing (see People v. Hare, 27 A.D.3d 1171, 1172, 811 N.Y.S.2d 539, lv. denied 6 N.Y.3d 892, 894, 898, 817 N.Y.S.2d 627, 629, 633, 850 N.E.2d 674, 676, 680).   Finally, the term of incarceration imposed is not unduly harsh or severe.

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

MEMORANDUM: