People v. McMullen

Apr 20, 2012
Versions:94 A.D.3d 1434
942 N.Y.S.2d 836

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 robbery in the first degree (Penal Law § 160.15 [3]). The record of the plea colloquy establishes that defendant knowingly, voluntarily and intelligently waived his right to appeal (see People v Lopez, 6 NY3d 248, 256 [2006]; People v Eatmon, 66 AD3d 1453, 1453 [2009]). That valid waiver of the right to appeal encompasses defendant‘s contention that imposition of the maximum period of postrelease supervision rendered the sentence unduly harsh and severe (see People v Hidalgo, 91 NY2d 733, 737 [1998]; People v Wilson, 53 AD3d 928, 929 [2008], lv denied 11 NY3d 858 [2008]). Defendant‘s further contention that County Court erred in failing to apprehend the extent of its discretion in imposing a period of postrelease supervision survives the waiver of the right to appeal (see People v Montgomery, 63 AD3d 1635, 1636 [2009], lv denied 13 NY3d 798 [2009]; People v Burgess, 23 AD3d 1095 [2005], lv denied 6 NY3d 810 [2006]). We conclude, however, that “[t]he court‘s statement at the plea proceeding with respect to the imposition of a five-year period of postrelease supervision does not, without more, indicate that the court erroneously believed that it lacked discretion to impose a shorter period” (People v Porter, 9 AD3d 887 [2004], lv denied 3 NY3d 710 [2004]). Present—Centra, J.P., Peradotto, Lindley, Sconiers and Martoche, JJ.