People v Nolcox

2007 NYSlipOp 04666

May 29, 2007

Appellate Division, Second Department

As corrected through Wednesday, July 11, 2007

The People of the State of New York, Respondent, v Kenyon Nolcox, Appellant.

—[*1]Mark Diamond, New York, N.Y., for appellant.

Francis D. Phillips II, District Attorney, Goshen, N.Y. (David R. Huey of counsel), for respondent.

Appeal by the defendant, as limited by his brief, from a sentence of the County Court, Orange County (DeRosa, J.), imposed November 14, 2005, upon his conviction of criminal possession of a weapon in the third degree, after his plea of guilty.

Ordered that the sentence is affirmed.

The defendant's valid waiver of his right to appeal forecloses review of his claim that the sentence imposed is excessive (see People v Oquendo, 38 AD3d 686 [2007]). The defendant's contention, however, that the court failed to exercise its discretion at sentencing (cf. People v Farrar, 52 NY2d 302, 306 [1981]; People v Tomlinson, 162 AD2d 563 [1990]) survives the defendant's waiver of his right to appeal (see People v Halston, 37 AD3d 1144 [2007]; People v Schafer, 19 AD3d 1133 [2005]). Nevertheless, the defendant's contention is without merit (cf. People v Farrar, supra; People v Tomlinson, supra; People v Terry, 152 AD2d 822 [1989]; People v Dorino, 145 AD2d 432, 433 [1988]). Crane, J.P., Ritter, Lifson and Balkin, JJ., concur.