| People v Farrell |
| 2010 NY Slip Op 02336 [71 AD3d 1507] |
| March 19, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v ThomasFarrell, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Michelle L. Cianciosa of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (John L. Michalski, A.J.),rendered February 18, 2009. The judgment convicted defendant, upon his plea of guilty, ofcriminal sexual act 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 sexual act in the first degree (Penal Law § 130.50 [4]). As the People correctlyconcede, a valid waiver by defendant of the right to appeal would not encompass his challenge tothe severity of the sentence because he purportedly waived his right to appeal before SupremeCourt advised him of the maximum sentence he could receive (see People v Rizek[appeal No. 1], 64 AD3d 1180 [2009], lv denied 13 NY3d 862 [2009]; People v Mingo, 38 AD3d 1270[2007]). Nevertheless, we conclude that the sentence is not unduly harsh or severe. Although avalid waiver by defendant of the right to appeal also would not encompass his contention that thecourt failed to take into account the jail time credit to which he is entitled in determining theduration of the order of protection (seePeople v Allen, 64 AD3d 1190 [2009], lv denied 13 NY3d 794 [2009]),defendant failed to preserve that contention for our review (see People v Nieves, 2 NY3d 310, 315-317 [2004]). We decline toexercise our power to review that contention as a matter of discretion in the interest of justice (see People v Owens, 66 AD3d1428 [2009]; Allen, 64 AD3d 1190 [2009]). Present—Smith, J.P., Centra,Fahey and Pine, JJ.