Case Information

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v ELVIS CASTILLO, Appellant.

Appellate Division of the Supreme Court of the State of New York, First Department

801 N.Y.S.2d 893

Judgment, Supreme Court, Bronx County (Steven Lloyd Barrett, J.), rendered June 14, 2002, convicting defendant, upon his plea of guilty, of kidnapping in the second degree, and sentencing him, as a second felony offender, to a term of nine years, and order, same court and Justice, entered on or about December 15, 2004, which denied defendant's CPL 440.10 motion to vacate the judgment, unanimously affirmed.

Defendant's valid waiver of his right to appeal encompassed his excessive sentence claim and thus forecloses review (see People v Hidalgo, 91 NY2d 733 [1998]). In any event, were we to find that defendant did not validly waive his right to appeal, we would perceive no basis for reducing the sentence.

The court properly exercised its discretion in denying defendant's motion to vacate judgment on the ground that it was based on factual assertions concerning his physical condition at the time of his plea that could have "readily been made to appear on the record" (CPL 440.10 [3] [a]; see People v Degondea, 3 AD3d 148, 156-160 [2003], lv denied 2 NY3d 798 [2004]). The court also properly denied the motion on the merits (see People v Lane, 1 AD3d 801 [2003], lv denied 2 NY3d 742 [2004]). Concur—Tom, J.P., Andrias, Sullivan, Gonzalez and Sweeny, JJ.