| People v Streeter |
| 2010 NY Slip Op 02268 [71 AD3d 1463] |
| March 19, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Benny D.Streeter, Appellant. |
—[*1] Benny D. Streeter, 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 (William J. Watson, A.J.), renderedSeptember 25, 2008. The judgment convicted defendant, upon his plea of guilty, of criminalcontempt 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 ofcriminal contempt in the first degree (Penal Law § 215.51 [b] [iv]). We reject thecontention of defendant that his waiver of the right to appeal was not knowingly, voluntarily, andintelligently entered (see People vLopez, 6 NY3d 248, 256 [2006]; People v Straw, 70 AD3d 1341 [2010]). It is well settled that "[n]oparticular litany is required for an effective waiver of the right to appeal" (People vMcDonald, 270 AD2d 955 [2000], lv denied 95 NY2d 800 [2000]; see People vCallahan, 80 NY2d 273, 283 [1992]), and the responses of defendant to County Court'squestions during the plea colloquy established that he understood the plea proceedings andvoluntarily waived the right to appeal (see People v Tantao, 41 AD3d 1274 [2007], lv denied 9NY3d 882 [2007]). The valid waiver by defendant of the right to appeal encompasses hischallenge to the severity of the sentence (see Lopez, 6 NY3d at 255; People vHidalgo, 91 NY2d 733, 737 [1998]). We note, however, that the court erroneously adviseddefendant at the time of sentencing that he was entitled to "appeal the sentence." In view of thaterror, we thus further note that defendant's challenge to the severity of the sentence lacks merit.
Defendant contends in his pro se supplemental brief that his sentence is illegal because thecourt imposed a period of interim probation prior to sentencing him to a term of imprisonmentand relied on the description of his conduct during that period of interim probation set forth inthe presentence report. Although that contention survives defendant's waiver of the right toappeal (see People v Callahan, 80 NY2d 273, 280 [1992]; People v Holcomb, 61 AD3d1356 [2009], lv denied 13 NY3d 745 [2009]), we conclude that it is without merit.The court was authorized to impose a period of interim probation pursuant to CPL 390.30 (6),and the court followed the proper procedure in revoking that period of interim probation (seegenerally People v Outley, 80 NY2d 702, 712-713 [1993]; People v Rollins, 50 AD3d 1535[2008], lv denied 10 NY3d 939 [2008]). Present—Smith, J.P., Fahey, Carni,Sconiers and Pine, JJ.