| People v Davis |
| 2014 NY Slip Op 00796 [114 AD3d 1166] |
| February 7, 2014 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Devon L. Davis, Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Francis A. Affronti,J.), rendered March 9, 2010. The judgment convicted defendant, upon his plea of guilty,of kidnapping in the second degree, criminal sexual act in the first degree and robbery inthe second 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 kidnapping in the second degree (Penal Law § 135.20), criminal sexualact in the first degree (§ 130.50 [1]) and robbery in the second degree (§160.10 [1]). Defendant failed to preserve for our review his contention that his plea wasnot knowing, voluntary and intelligent because Supreme Court imposed a longer periodof postrelease supervision (PRS) than it promised at the time of the plea. Contrary todefendant's further contention, preservation is required. The record establishes that"defendant was advised of what the sentence would be, including its PRS term, at theoutset of the sentencing proceeding. Because defendant could have sought relief from thesentencing court in advance of the sentence's imposition, . . . [the] rationale[of People v Louree (8NY3d 541, 546 [2007])] for dispensing with the preservation requirement is notpresently applicable" (People vMurray, 15 NY3d 725, 727 [2010]; see People v Peque, 22 NY3d 168, 183 [2013]).
Even assuming, arguendo, that defendant's waiver of the right to appeal was invalidand thus does not preclude our review of his challenge to the severity of his sentence (see People v Williams, 46AD3d 1424, 1425 [2007]; People v Whipple, 37 AD3d 1148, 1148 [2007], lvdenied 8 NY3d 928 [2007]), we nevertheless conclude that the sentence is notunduly harsh or severe. Present—Smith, J.P., Peradotto, Lindley, Valentino andWhalen, JJ.