THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. CHRISTOPHER TESSITORE DEFENDANT APPELLANT

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Supreme Court, Appellate Division, Fourth Department, New York.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. CHRISTOPHER W. TESSITORE, DEFENDANT–APPELLANT.

KA 11–02219

Decided: December 21, 2012

PRESENT:  SCUDDER, P.J., SMITH, CENTRA, LINDLEY, AND WHALEN, JJ. CHARLES A. MARANGOLA, MORAVIA, FOR DEFENDANT–APPELLANT. JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (BRIAN N. BAUERSFELD OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

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

Memorandum:  On appeal from a judgment convicting him, upon his plea of guilty, of attempted murder in the second degree (Penal Law §§ 110.00, 125.25[1] ), defendant contends that the sentence is unduly harsh and severe and that the award of restitution is unlawful.   Defendant's challenge to the severity of the sentence is encompassed by his valid waiver of the right to appeal (see People v. Lopez, 6 NY3d 248, 255–256;  People v. Harris, 94 AD3d 1484, 1485, lv denied 19 NY3d 961;  People v. Gordon, 89 AD3d 1466, 1466, lv denied 18 NY3d 957).

Defendant's challenge “to the amount of restitution is not foreclosed by his 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;  see People v. Spencer, 87 AD3d 1284, 1285).   Defendant, however, failed to preserve his challenge to the restitution amount for our review inasmuch as he did not object to that amount at sentencing (see People v. Jorge N.T., 70 AD3d 1456, 1457, lv denied 14 NY3d 889;  People v. Hannig, 68 AD3d 1779, 1780, lv denied 14 NY3d 801), and in any event he affirmatively waived his right to a restitution hearing (see People v. Huffman, 288 A.D.2d 907, 908, lv denied 97 N.Y.2d 755).

Frances E. Cafarell

Clerk of the Court