           SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

215
KA 09-02408
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, GREEN, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

DAVID BUTLER, JR., DEFENDANT-APPELLANT.


TIMOTHY PATRICK MURPHY, WILLIAMSVILLE, FOR DEFENDANT-APPELLANT.

JOHN C. TUNNEY, DISTRICT ATTORNEY, BATH, FOR RESPONDENT.


     Appeal from a judgment of the Steuben County Court (Joseph W.
Latham, J.), rendered September 30, 2009. The judgment convicted
defendant, upon his plea of guilty, of burglary 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 burglary in the second degree (Penal Law §
140.25 [2]). We reject defendant’s contention that his waiver of the
right to appeal is invalid. Defendant signed a plea agreement that
required him to waive his right to appeal, and he indicated during the
plea colloquy that he understood that he was waiving his right to
appeal. Under the circumstances, we conclude that defendant’s waiver
of the right to appeal was knowingly, voluntarily, and intelligently
entered (see People v Lopez, 6 NY3d 248, 256; People v Thomas, 71 AD3d
1231, 1231-1232, lv denied 14 NY3d 893). Defendant’s valid waiver of
the right to appeal encompasses his challenge to the severity of the
sentence (see Lopez, 6 NY3d at 256; People v Hidalgo, 91 NY2d 733,
737). That valid waiver also encompasses defendant’s contention that
the court erred in ordering restitution following sentencing, inasmuch
as the amount of restitution was included in the plea agreement (see
generally People v Thomas, 77 AD3d 1325).




Entered:    February 18, 2011                      Patricia L. Morgan
                                                   Clerk of the Court
