People v. Hoyt

Jun 7, 2013
Versions:107 A.D.3d 1426
965 N.Y.S.2d 902

Appeal from a judgment of the Erie County Court (Kenneth F. Case, J.), rendered March 16, 2011. The judgment convicted defendant, upon his plea of guilty, of criminal sexual act in the first 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 criminal sexual act in the first degree (Penal Law § 130.50 [3]). Contrary to defendant‘s contention, the record establishes that he knowingly, voluntarily and intelligently waived the right to appeal (see generally People v Lopez, 6 NY3d 248, 256 [2006]), and that valid waiver forecloses any challenge by defendant to the severity of the sentence (see id. at 255; see generally People v Lococo, 92 NY2d 825, 827 [1998]). Defendant‘s valid waiver of the right to appeal does not encompass his further contention that County Court erred in failing to take into account the jail time credit to which he is entitled in determining the duration of the order of protection (see People v Farrell, 71 AD3d 1507, 1507 [2010], lv denied 15 NY3d 804 [2010]). Nevertheless, defendant failed to preserve that contention for our review, and we decline to exercise our power to review it as a matter of discretion in the interest of justice (see id.). Present—Smith, J.P., Peradotto, Lindley, Valentino and Whalen, JJ.