           SUPREME COURT OF THE STATE OF NEW YORK
            Appellate Division, Fourth Judicial Department
1240
KA 11-02219
PRESENT: SCUDDER, P.J., SMITH, CENTRA, LINDLEY, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

CHRISTOPHER W. TESSITORE, DEFENDANT-APPELLANT.


CHARLES A. MARANGOLA, MORAVIA, FOR DEFENDANT-APPELLANT.

JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (BRIAN N. BAUERSFELD OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Cayuga County Court (Mark H.
Fandrich, A.J.), rendered May 3, 2011. The judgment convicted
defendant, upon his plea of guilty, of attempted murder in the second
degree.

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

     Memorandum: On appeal from a judgment convicting him, upon his
plea of guilty, of attempted murder in the second degree (Penal Law §§
110.00, 125.25 [1]), defendant contends that the sentence is unduly
harsh and severe and that the award of restitution is unlawful.
Defendant’s challenge to the severity of the sentence is encompassed
by his valid waiver of the right to appeal (see People v Lopez, 6 NY3d
248, 255-256; People v Harris, 94 AD3d 1484, 1485, lv denied 19 NY3d
961; People v Gordon, 89 AD3d 1466, 1466, lv denied 18 NY3d 957).

     Defendant’s challenge “to the amount of restitution is not
foreclosed by his waiver of the right to appeal because the amount of
restitution was not included in the terms of the plea agreement”
(People v Sweeney, 4 AD3d 769, 770, lv denied 2 NY3d 807; see People v
Spencer, 87 AD3d 1284, 1285). Defendant, however, failed to preserve
his challenge to the restitution amount for our review inasmuch as he
did not object to that amount at sentencing (see People v Jorge N.T.,
70 AD3d 1456, 1457, lv denied 14 NY3d 889; People v Hannig, 68 AD3d
1779, 1780, lv denied 14 NY3d 801), and in any event he affirmatively
waived his right to a restitution hearing (see People v Huffman, 288
AD2d 907, 908, lv denied 97 NY2d 755).



Entered:   December 21, 2012                       Frances E. Cafarell
                                                   Clerk of the Court
