People v. Shubert

Apr 29, 2011
Versions:83 A.D.3d 1577
921 N.Y.S.2d 431

Appeal from a judgment of the Orleans County Court (James P. Punch, J.), rendered April 19, 2010. The judgment convicted defendant, upon his plea of guilty, of rape in the third 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 rape in the third degree (Penal Law § 130.25 [2]), defendant contends that County Court improperly considered prior criminal charges that did not result in convictions when it imposed sentence and thus that the sentence is illegal. Defendant‘s valid waiver of the right to appeal does “not encompass the right to challenge the legality of the sentencing procedure on appeal” (People v Nicholson, 237 AD2d 973, 974 [1997], lv denied 90 NY2d 908 [1997]), nor is preservation required to challenge the legality of a sentence (see generally People v Samms, 95 NY2d 52, 56 [2000]). Nevertheless, the record does not support defendant‘s contention. Present—Scudder, P.J., Fahey, Carni, Green and Gorski, JJ.