People v. Culver

48 A.D.3d 1030, 849 N.Y.S.2d 835

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 1, 2008
• Status: Published

Opinion

Appeal from a judgment of the Erie County Court (Timothy J. Drury, J.), rendered January 11, 2006. The judgment convicted defendant, upon his plea of guilty, of grand larceny in the second degree.

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

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of grand larceny in the second degree (Penal Law § 155.40 [1]). Contrary to the contention of defendant, the plea colloquy establishes that his waiver of the right to appeal was voluntary, knowing, and intelligent (see People v Lococo, 92 NY2d 825, 827 [1998]; People v Callahan, 80 NY2d 273, 280 [1992]; People v Lovett, 8 AD3d 1007 [2004], lv denied 3 NY3d 677 [2004]). The valid waiver by defendant of his right to appeal encompasses his challenge to the severity of the sentence (see People v Lopez, 6 NY3d 248, 256 [2006]; People v Hidalgo, 91 NY2d 733, 737 [1998]). Contrary to the further contention of defendant in his pro se supplemental brief, County Court did not err in failing to fix the time and manner for the payment of restitution pursuant to Penal Law § 65.10 (2) (g). That section applies when restitution is imposed as a condition of probation, and here defendant was not sentenced to a term of probation. Present—Scudder, PJ., Centra, Green and Pine, JJ.