People v. Sastre

Appeal by the defendant, as limited by his motion, from a sentence of the County Court, Westchester County (Lange, J.), imposed September 30, 405 1994, upon his conviction of attempted burglary in the second degree, upon his plea of guilty, the sentence being a one year term of imprisonment, a mandatory surcharge of $152, and the payment of restitution in the amount of $16,000. Ordered that the sentence is modified, on the law, by deleting the provision thereof which imposed a mandatory surcharge; as so modified, the sentence is affirmed. Having knowingly, voluntarily, and intelligently waived his right to appellate review in connection with his plea agreement, the defendant is now foreclosed from challenging the adequacy of the procedures the court used to determine the amount of restitution (see, People v Callahan, 80 NY2d 273; People v Seaberg, 74 NY2d 1; People v Brakas, 204 AD2d 474). However, as the People concede, the County Court erred in directing the defendant to both make restitution and pay a mandatory surcharge (see, People v Bailey, 209 AD2d 709; People v Willis, 168 AD2d 470; People v Turco, 130 AD2d 785). Mangano, P. J., Balletta, Sullivan, Santucci and Krausman, JJ., concur.