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

355
KA 12-01952
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

MICHAEL J. HILTON, ALSO KNOWN AS MICHAEL HILTON,
ALSO KNOWN AS MICHAEL JAMES HILTON,
DEFENDANT-APPELLANT.


KELIANN M. ARGY ELNISKI, ORCHARD PARK, FOR DEFENDANT-APPELLANT.

LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (WILLIAM G. ZICKL OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Genesee County Court (Robert C.
Noonan, J.), rendered May 9, 2012. 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: On appeal from a judgment convicting him upon his
plea of guilty of burglary in the second degree (Penal Law § 140.25
[2]), defendant contends that his plea was not knowing, intelligent
and voluntary because the People’s offer required defendant to
stipulate to an unspecified restitution amount, was coupled with the
threat of additional charges, and required him to respond immediately
to it during the plea proceeding. Although that contention survives
defendant’s valid waiver of the right to appeal, defendant failed to
preserve it for our review by failing to move to withdraw the plea or
to vacate the judgment of conviction (see People v Davis, 99 AD3d
1228, 1229, lv denied 20 NY3d 1010; People v Small, 82 AD3d 1451,
1452, lv denied 17 NY3d 801; People v Swart, 20 AD3d 691, 692). In
any event, defendant’s contention is without merit inasmuch as the
record establishes that the plea was knowingly, intelligently and
voluntarily entered (see People v Wolf, 88 AD3d 1266, 1267, lv denied
18 NY3d 863; People v Sartori, 8 AD3d 748, 749; see also People v
Mullen, 77 AD3d 686, 686). The valid waiver by defendant of the right
to appeal encompasses his challenge to the severity of the sentence
(see People v Lopez, 6 NY3d 248, 255-256; see generally People v
Hidalgo, 91 NY2d 733, 737).


Entered:    March 28, 2014                         Frances E. Cafarell
                                                   Clerk of the Court
