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

206
KA 13-01214
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, SCONIERS, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

TODD R. BRIGLIN, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


D.J. & J.A. CIRANDO, ESQS., SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR
DEFENDANT-APPELLANT.

BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL),
FOR RESPONDENT.


     Appeal from a judgment of the Steuben County Court (Joseph W.
Latham, J.), rendered January 3, 2013. The judgment convicted
defendant, upon his plea of guilty, of burglary in the third degree.

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

     Memorandum: Defendant appeals from judgments rendered on the
same day, convicting him upon his pleas of guilty of burglary in the
third degree (Penal Law § 140.20). As defendant contends and the
People correctly concede, the waiver of the right to appeal in each
appeal is invalid because, “[a]lthough the record establishes that
defendant executed a written waiver of the right to appeal, there was
no colloquy between County Court and defendant regarding the waiver of
the right to appeal to ensure that it was knowingly, voluntarily and
intelligently entered” (People v Carno, 101 AD3d 1663, 1664, lv denied
20 NY3d 1060).

     Defendant contends that the court erred in its determination of
restitution with respect to the victims in each appeal. At
sentencing, the People indicated that the amount of restitution was
$905.02 based on two victim impact statements, but if there were
additional victims seeking restitution the matter should be scheduled
for a hearing. Defendant objected to any additional amounts of
restitution and agreed to the People’s suggestion that a hearing be
held if there were additional amounts sought. The court bifurcated
the sentencing proceeding by severing the issue of restitution for a
hearing, if necessary. Several months later, the court issued an
order of restitution in the amount of $905.02. Defendant failed to
appeal from the order of restitution (see People v Connolly, 100 AD3d
1419, 1419; People v Brusie, 70 AD3d 1395, 1396), however, and thus
                                 -2-                           206
                                                         KA 13-01214

his challenge to the amount of restitution is not before us. We note
in any event that defendant failed to preserve his challenge for our
review (see People v Horne, 97 NY2d 404, 414 n 3; People v Jorge N.T.,
70 AD3d 1456, 1457, lv denied 14 NY3d 889), inasmuch as he did not
object to the amount of $905.02 stated at sentencing or request a
hearing with respect thereto. Even if defendant had appealed from the
order of restitution, we would decline to exercise our power to review
that challenge as a matter of discretion in the interest of justice
(see CPL 470.15 [3] [c]; People v Marco A.C., 115 AD3d 1219, 1220, lv
denied 23 NY3d 1039).

     Finally, the sentence in each appeal is not unduly harsh or
severe.




Entered:   February 13, 2015                    Frances E. Cafarell
                                                Clerk of the Court
