| People v Edwards |
| 2009 NY Slip Op 00816 [59 AD3d 980] |
| February 6, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v KevinEdwards, Appellant. |
—[*1] Frank J. Clark, District Attorney, Buffalo (J. Michael Marion of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Thomas P. Franczyk, J.), renderedNovember 20, 2007. The judgment convicted defendant, upon his plea of guilty, of rape in thefirst degree and course of sexual conduct against a child in the first 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 ofrape in the first degree (Penal Law § 130.35 [1]) and course of sexual conduct against achild in the first degree (§ 130.75 [1] [b]). We agree with defendant that his waiver of theright to appeal was invalid because it is unclear on the record before us whether he "may haveerroneously believed that the right to appeal is automatically extinguished upon entry of a guiltyplea" (People v Moyett, 7 NY3d892, 893 [2006]). Although the waiver thus does not encompass defendant's challenge to theseverity of the sentence (see generallyPeople v Lopez, 6 NY3d 248, 256 [2006]), we reject that challenge. "Defendant wassentenced in accordance with the plea bargain and should be bound by its terms" (People vMcGovern, 265 AD2d 881 [1999], lv denied 94 NY2d 882 [2000]; see People v Lake, 45 AD3d 1409[2007], lv denied 10 NY3d 767 [2008]). Finally, defendant failed to preserve for ourreview his contention that County Court failed to take into account the jail time credit to whichhe is entitled in determining the duration of the order of protection (see People v Nieves, 2 NY3d 310,315-317 [2004]), and we decline to exercise our power to review that contention as a matter ofdiscretion in the interest of justice (see CPL 470.15 [6] [a]). Present—Scudder,P.J., Martoche, Centra, Fahey and Peradotto, JJ.