| People v Poleun |
| 2010 NY Slip Op 05931 [75 AD3d 1109] |
| July 2, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v James R.Poleun, Appellant. |
—[*1] Michael J. Violante, District Attorney, Lockport (Thomas H. Brandt of counsel), forrespondent.
Appeal from a judgment of the Niagara County Court (Matthew J. Murphy, III, J.), renderedJuly 20, 2009. The judgment convicted defendant, upon his plea of guilty, of possessing a sexualperformance by a child.
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 possessing a sexual performance by a child (Penal Law § 263.16). Contrary todefendant's contention, the record of the plea proceeding establishes that defendant understoodthat the waiver of the right to appeal was separate from his plea of guilty (see People v Dillon, 67 AD3d1382 [2009]). We conclude that his waiver of the right to appeal was knowingly,intelligently, and voluntarily entered, and that it encompasses his challenge to the severity of thesentence (see People v Lopez, 6NY3d 248, 256 [2006]). Although the further contention of defendant that the plea was notvoluntarily entered survives his waiver of the right to appeal, he failed to preserve thatcontention for our review because he failed to move to withdraw the plea or to vacate thejudgment of conviction (see People vDiaz, 62 AD3d 1252 [2009], lv denied 12 NY3d 924 [2009]; see also People v Burney, 30 AD3d1082 [2006], amended on rearg 32 AD3d 1366 [2006], lv denied 7 NY3d866 [2006], denied reconsideration 8 NY3d 844 [2007]). In any event, that contention islacking in merit. Although the People incorrectly informed defendant at the plea proceeding thathe could be sentenced to a determinate term of incarceration of up to four years and a period ofpostrelease supervision of up to 10 years, County Court thereafter correctly advised defendant ofhis maximum sentencing exposure (seePeople v Johnson, 71 AD3d 1048 [2010]), and the court properly sentenced defendantto an indeterminate term of incarceration without a period of postrelease supervision (seegenerally Burney, 30 AD3d 1082 [2006]). Present—Smith, J.P., Fahey, Lindley,Sconiers and Green, JJ.