| People v Tolliver |
| 2008 NY Slip Op 07341 [55 AD3d 1302] |
| October 3, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v John Tolliver,Appellant. |
—[*1] Frank J. Clark, District Attorney, Buffalo (J. Michael Marion of counsel), for respondent.
Appeal from a judgment of the Supreme Court, Erie County (Russell P. Buscaglia, A.J.), renderedMarch 8, 2007. The judgment convicted defendant, upon his plea of guilty, of criminal possession of aforged instrument in the second degree.
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 criminalpossession of a forged instrument in the second degree (Penal Law § 170.25). Althoughdefendant's waiver of the right to appeal is valid (cf. People v Vega, 49 AD3d 1185 [2008]; see generally People v Lopez, 6 NY3d248, 256 [2006]), that waiver does not encompass defendant's challenge to the severity of thesentence inasmuch as defendant waived his right to appeal before Supreme Court advised him of themaximum sentence that could be imposed (see People v Mingo, 38 AD3d 1270, 1271 [2007]; see generallyPeople v Lococo, 92 NY2d 825, 827 [1998]). Nevertheless, we conclude that the sentence is notunduly harsh or severe. Defendant's remaining contention with respect to the alleged inaccuracy in thepresentence report is not preserved for our review (see CPL 470.05 [2]; People v Karlas,208 AD2d 767 [1994]), and we decline to exercise our power to review it as a matter ofdiscretion in the interest of justice (see CPL 470.15 [6] [a]). Present—Scudder, P.J.,Centra, Fahey, Peradotto and Green, JJ.