| People v Hoyt |
| 2013 NY Slip Op 04155 [107 AD3d 1426] |
| June 7, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vMichael R. Hoyt, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (David Panepinto of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Kenneth F. Case, J.), renderedMarch 16, 2011. The judgment convicted defendant, upon his plea of guilty, of criminalsexual 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 ofguilty of criminal sexual act in the first degree (Penal Law § 130.50 [3]). Contraryto defendant's contention, the record establishes that he knowingly, voluntarily andintelligently waived the right to appeal (see generally People v Lopez, 6 NY3d 248, 256 [2006]),and that valid waiver forecloses any challenge by defendant to the severity of thesentence (see id. at 255; see generally People v Lococo, 92 NY2d 825,827 [1998]). Defendant's valid waiver of the right to appeal does not encompass hisfurther contention that County Court erred in failing to take into account the jail timecredit to which he is entitled in determining the duration of the order of protection (see People v Farrell, 71 AD3d1507, 1507 [2010], lv denied 15 NY3d 804 [2010]). Nevertheless, defendantfailed to preserve that contention for our review, and we decline to exercise our power toreview it as a matter of discretion in the interest of justice (see id.).Present—Smith, J.P., Peradotto, Lindley, Valentino and Whalen, JJ.