| People v Mills |
| 2011 NY Slip Op 05371 [85 AD3d 1448] |
| June 23, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v MarcellusMills, Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
Appeal from a judgment of the County Court of Schenectady County (Giardino, J.), renderedNovember 20, 2009, convicting defendant upon his plea of guilty of the crime of possessing asexual performance by a child (two counts).
In satisfaction of a 28-count indictment charging him with numerous sexually-related crimes,defendant pleaded guilty to two counts of possessing a sexual performance by a child and waivedhis right to appeal. He was thereafter sentenced, in accordance with the plea agreement, to twoconsecutive terms of 1 to 3 years in prison. Defendant appeals.
Defendant's contention that his sentence is harsh and excessive is precluded by his validwaiver of the right to appeal (see Peoplev Stokes, 75 AD3d 662, 663 [2010]). To the extent that he argues that such waiver doesnot encompass his challenge to the severity of the sentence because he was not advised that hecould receive consecutive sentences, we disagree. Defense counsel stated on the record that theplea deal encompassed "a sentence of one to three on each plea, each of those to be consecutive,for a total of two to six." The People reiterated the agreement indicating, among other things, thatit was to be "two pleas for a total of two to six years of incarceration." The court also askeddefendant if he understood that "the agreement calls for a sentence of two to six." "As defendant'knew the maximum exposure [he] could face upon pleading guilty,' his valid appeal waiverprecludes his present challenge to his [ ]sentence as harsh and excessive" (People v Sofia, 62 AD3d 1159,1160 [2009], quoting People v Lococo, 92 NY2d [*2]825,827 [1998]).
Mercure, J.P., Peters, Malone Jr., Kavanagh and Stein, JJ., concur. Ordered that the judgmentis affirmed.