PEOPLE v. STRAW (2010)

 Defendant appeals from a judgment convicting him upon his plea of guilty of burglary in the third degree (Penal Law § 140.20) and criminal possession of stolen property in the fourth degree (§ 165.45[5] ).   We reject the contention of defendant that his waiver of the right to appeal was not knowingly, voluntarily, and intelligently entered (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145).  “No particular litany is required for an effective waiver of the right to appeal” (People v. McDonald, 270 A.D.2d 955, 705 N.Y.S.2d 308, lv. denied 95 N.Y.2d 800, 711 N.Y.S.2d 168, 733 N.E.2d 240;  see People v. Callahan, 80 N.Y.2d 273, 283, 590 N.Y.S.2d 46, 604 N.E.2d 108), and the responses of defendant to Supreme Court's questions during the plea colloquy establish that he understood the proceedings and voluntarily waived the right to appeal (see People v. Tantao, 41 A.D.3d 1274, 838 N.Y.S.2d 757, lv. denied 9 N.Y.3d 882, 842 N.Y.S.2d 794, 874 N.E.2d 761).   The valid waiver by defendant of the right to appeal encompasses his challenge to the severity of the sentence (see People v. Hidalgo, 91 N.Y.2d 733, 737, 675 N.Y.S.2d 327, 698 N.E.2d 46), but it does not encompass defendant's challenge to the amount of restitution ordered inasmuch as that amount was not included in the terms of the plea agreement (see People v. Lovett, 8 A.D.3d 1007, 778 N.Y.S.2d 243, lv. denied 3 N.Y.3d 673, 677, 784 N.Y.S.2d 12, 15, 817 N.E.2d 830, 833;  cf. People v. Gordon, 43 A.D.3d 1330, 841 N.Y.S.2d 811, lv. denied 9 N.Y.3d 1006, 850 N.Y.S.2d 394, 880 N.E.2d 880).   Contrary to defendant's contention, however, the People met their burden of establishing the victim's out-of-pocket loss by a preponderance of the evidence (see CPL 400.30[4];  People v. Tzitzikalakis, 8 N.Y.3d 217, 221, 832 N.Y.S.2d 120, 864 N.E.2d 44).

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

MEMORANDUM: