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

1221
KA 10-00590
PRESENT: SCUDDER, P.J., CARNI, LINDLEY, SCONIERS, AND GREEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

JUDD A. FAREWELL, JR., DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


SETH AZRIA, SYRACUSE, FOR DEFENDANT-APPELLANT.

JOSEPH V. CARDONE, DISTRICT ATTORNEY, ALBION (KATHERINE BOGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Orleans County Court (James P.
Punch, J.), rendered December 7, 2009. The judgment convicted
defendant, upon his plea of guilty, of attempted burglary in the
second degree.

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

     Memorandum: In appeal No. 1, defendant appeals from a judgment
convicting him upon his plea of guilty of attempted burglary in the
second degree (Penal Law §§ 110.00, 140.25 [2]) and, in appeal No. 2,
he appeals from a judgment convicting him upon his plea of guilty of
burglary in the third degree (§ 140.20). Defendant’s contention in
each appeal that County Court abused its discretion in denying his
request for youthful offender status is encompassed by his valid
waiver of the right to appeal (see People v Elshabazz, 81 AD3d 1429,
lv denied 16 NY3d 858; People v Capps, 63 AD3d 1632, lv denied 13 NY3d
795). Defendant’s challenge to the severity of the sentence in each
appeal is also encompassed by that valid waiver (see People v Lopez, 6
NY3d 248, 255-256; People v VanDeViver, 56 AD3d 1118, 1119, lv denied
11 NY3d 931, 12 NY3d 788).

     Defendant further contends in each appeal that the court should
have conducted a hearing before ordering him to pay restitution.
Inasmuch as defendant expressly waived his right to a hearing and
agreed to the amount of restitution at sentencing, that contention is
without merit (see People v McElrath, 241 AD2d 932).



Entered:    December 23, 2011                      Frances E. Cafarell
                                                   Clerk of the Court
