| People v Bentley |
| 2009 NY Slip Op 04581 [63 AD3d 1624] |
| June 5, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Michael J.Bentley, Appellant. |
—[*1] Michael J. Bentley, defendant-appellant pro se. Michael J. Violante, District Attorney, Lockport (Thomas H. Brandt of counsel), forrespondent.
Appeal from a judgment of the Niagara County Court (Sara S. Sperrazza, J.), renderedAugust 27, 2007. The judgment convicted defendant, upon his plea of guilty, of attemptedburglary in the second degree and assault in the third 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 ofattempted burglary in the second degree (Penal Law §§ 110.00, 140.25 [2]) andassault in the third degree (§ 120.00 [1]). Contrary to defendant's contention, County Courtdid not improperly conflate the waiver of the right to appeal with those rights automaticallyforfeited by a guilty plea (see People vPorter, 55 AD3d 1313 [2008], lv denied 11 NY3d 899 [2008]; cf. People v Moyett, 7 NY3d 892[2006]). We conclude, however, that the waiver by defendant of the right to appeal does notencompass his challenge to the severity of the sentence because he waived his right to appealbefore the court advised him of the maximum sentence he could receive (see People v Martinez, 55 AD3d1334, 1335 [2008], lv denied 11 NY3d 927 [2009]; People v Mingo, 38 AD3d 1270[2007]). Nevertheless, we reject defendant's contention that the sentence is unduly harsh orsevere. Defendant failed to preserve for our review his contention that the court failed to takeinto account the jail time credit to which he is entitled in determining the duration of the order ofprotection (see People v Nieves, 2NY3d 310, 315-317 [2004]), and we decline to exercise our power to review that contentionas a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]; People v Ortiz, 43 AD3d 1348[2007], lv denied 9 NY3d 1008 [2007]). We have considered the contentions raised bydefendant in his pro se supplemental brief and conclude that they are without merit.Present—Hurlbutt, J.P., Smith, Centra, Pine and Gorski, JJ.