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

399
KA 09-01488
PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT

                     V                              MEMORANDUM AND ORDER

SAMUEL L. RIVALDO, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES ECKERT OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (STEPHEN X. O’BRIEN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Stephen T.
Miller, A.J.), rendered June 2, 2009. 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]). On this record, we conclude that defendant’s
challenge to the amount of the monthly restitution payments ordered by
County Court is not foreclosed by his valid waiver of the right to
appeal because the amount of those monthly payments was not included
in the terms of the plea agreement (see People v Tessitore, 101 AD3d
1621, 1622, lv denied 20 NY3d 1104). Even assuming, arguendo, that
defendant preserved for our review his challenge to the amount of the
monthly restitution payments (see generally People v Connors, 91 AD3d
1340, 1341-1342, lv denied 18 NY3d 956; People v Farewell, 90 AD3d
1502, 1503, lv denied 18 NY3d 957), we conclude that it lacks merit
(see generally People v Zimmerman, 12 AD3d 1105, 1105, lv denied 4
NY3d 750).




Entered:   May 2, 2014                            Frances E. Cafarell
                                                  Clerk of the Court
