People v Brown

2011 NY Slip Op 03464 [83 AD3d 1577]

April 29, 2011

Appellate Division, Fourth Department

As corrected through Wednesday, June 8, 2011

The People of the State of New York, Respondent, v Corey A.Brown, Appellant.

—[*1]Michael F. Donnelly, Syracuse, for defendant-appellant.

Joseph V. Cardone, District Attorney, Albion (Katherine Bogan of counsel), forrespondent.

Appeal from a judgment of the Orleans County Court (James P. Punch, J.), rendered April19, 2010. The judgment convicted defendant, upon his plea of guilty, of rape in the third degree.

It is hereby ordered that the judgment so appealed from is unanimously affirmed.

Memorandum: On appeal from a judgment convicting him upon his plea of guilty of rape inthe third degree (Penal Law § 130.25 [2]), defendant contends that County Courtimproperly considered prior criminal charges that did not result in convictions when it imposedsentence and thus that the sentence is illegal. Defendant's valid waiver of the right to appeal does"not encompass the right to challenge the legality of the sentencing procedure on appeal"(People v Nicholson, 237 AD2d 973, 974 [1997], lv denied 90 NY2d 908[1997]), nor is preservation required to challenge the legality of a sentence (see generallyPeople v Samms, 95 NY2d 52, 56 [2000]). Nevertheless, the record does not supportdefendant's contention. Present—Scudder, P.J., Fahey, Carni, Green and Gorski, JJ.