| People v McMullen |
| 2012 NY Slip Op 03000 [94 AD3d 1434] |
| April 20, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v EricMcMullen, Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.), renderedNovember 13, 2008. The judgment convicted defendant, upon his plea of guilty, of robbery in thefirst 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 ofrobbery in the first degree (Penal Law § 160.15 [3]). The record of the plea colloquyestablishes that defendant knowingly, voluntarily and intelligently waived his right to appeal (see People v Lopez, 6 NY3d 248,256 [2006]; People v Eatmon, 66AD3d 1453, 1453 [2009]). That valid waiver of the right to appeal encompasses defendant'scontention that imposition of the maximum period of postrelease supervision rendered thesentence unduly harsh and severe (see People v Hidalgo, 91 NY2d 733, 737 [1998]; People v Wilson, 53 AD3d 928,929 [2008], lv denied 11 NY3d 858 [2008]). Defendant's further contention that CountyCourt erred in failing to apprehend the extent of its discretion in imposing a period of postreleasesupervision survives the waiver of the right to appeal (see People v Montgomery, 63 AD3d 1635, 1636 [2009], lvdenied 13 NY3d 798 [2009]; Peoplev Burgess, 23 AD3d 1095 [2005], lv denied 6 NY3d 810 [2006]). We conclude,however, that "[t]he court's statement at the plea proceeding with respect to the imposition of afive-year period of postrelease supervision does not, without more, indicate that the courterroneously believed that it lacked discretion to impose a shorter period" (People v Porter, 9 AD3d 887[2004], lv denied 3 NY3d 710 [2004]). Present—Centra, J.P., Peradotto, Lindley,Sconiers and Martoche, JJ.