People v Dean

2008 NY Slip Op 05438

Decided on June 13, 2008

Appellate Division, Fourth Department

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 13, 2008


PRESENT: HURLBUTT, J.P., LUNN, FAHEY, PERADOTTO, AND PINE, JJ.
729 KA 07-00932




Appeal from a judgment of the Ontario County Court (William F. Kocher, J.), rendered February 20, 2007. The judgment convicted defendant, upon his plea of guilty, of criminal sale of a controlled substance in the second degree, criminal possession of a controlled substance in the third degree and unlawful possession of marihuana.


DAVISON LAW OFFICE, WEBSTER (MARY P. DAVISON OF COUNSEL), FOR DEFENDANT-APPELLANT.
R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (JAMES B. RITTS OF COUNSEL), FOR RESPONDENT.


It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him upon his plea of guilty of, inter alia, criminal sale of a controlled substance in the second degree (Penal Law § 220.41 [1]) and, in appeal No. 2, defendant appeals from a judgment convicting him upon his plea of guilty of, inter alia, criminal sale of a controlled substance in the third degree (§ 220.39 [1]). County Court informed defendant at the time of the pleas that he would be sentenced to the "maximum" period of postrelease supervision. Although defendant's pleas were not knowingly, voluntarily and intelligently entered because the court failed to inform him prior to the entry of each plea of the period of postrelease supervision that would be imposed at sentencing (see People v Boyd, 50 AD3d 1578), the remedy for the court's error is vacatur of the pleas (see id.), and defendant has expressly stated that he does not wish to be afforded that remedy (see generally People v Sparber, ___ NY3d ___ [Apr. 29, 2008]). We reject the contention of defendant that the court's error renders his waiver of the right to appeal invalid with respect to each appeal (see generally People v Lopez, 6 NY3d 248, 256), and defendant's challenge to the severity of the sentences is thus encompassed by that valid waiver of the right to appeal (see People v
Hidalgo, 91 NY2d 733, 737; People v Dupont, 292 AD2d 872, lv denied 98 NY2d 650; People v Wilson, 284 AD2d 959, lv denied 96 NY2d 943).
Entered: June 13, 2008
JoAnn M. Wahl
Clerk of the Court