THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. APPEAL NO (2010)

MEMORANDUM AND ORDER

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

Memorandum:  On appeal from two judgments each convicting him upon his plea of guilty of grand larceny in the fourth degree (Penal Law § 155.30[1] ), defendant contends that County Court erred in delegating its authority to determine the amount of restitution to be imposed to the Probation Department.   Although that contention is not encompassed by defendant's valid waiver of the right to appeal (see e.g. People v. Dort, 277 A.D.2d 487;  People v. Denue, 275 A.D.2d 863), we nevertheless conclude that it lacks merit.   It is well settled that the court “may call on [the Probation Department] to act as a preliminary fact finder and submit its recommendations in a written report” (People v. Fuller, 57 N.Y.2d 152, 158).   Here, the court rather than the Probation Department fixed the amount of restitution and imposed that amount at the time of sentencing, and we thus conclude that there was no improper delegation of authority (cf.  People v. Beaudoin, 195 A.D.2d 996, lv denied 82 N.Y.2d 891;  People v. Bentivegna, 145 A.D.2d 899).

Although “[t]he challenge by defendant to the amount of restitution is not foreclosed by his [valid] waiver of the right to appeal because the amount of restitution was not included in the terms of the plea agreement” (People v. Sweeney, 4 AD3d 769, 770, lv denied 2 NY3d 807), we conclude that defendant waived that contention inasmuch as he expressly consented to the amount of restitution recommended by the Probation Department in the presentence report (see generally People v. Huffman, 288 A.D.2d 907, lv denied 97 N.Y.2d 755;  People v. Chambers, 242 A.D.2d 860).

Patricia L. Morgan

Clerk of the Court