| People v Villar |
| 2014 NY Slip Op 02203 [115 AD3d 1361] |
| March 28, 2014 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v CheA. Villar, Appellant. |
—[*1] Michael J. Violante, District Attorney, Lockport (Thomas H. Brandt of counsel), forrespondent.
Appeal from a judgment of the Niagara County Court (Sara S. Farkas, J.), renderedDecember 4, 2012. The judgment convicted defendant, upon his plea of guilty, ofpromoting a sexual performance by a child (three counts) and failure to register as a sexoffender.
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, inter alia, three counts of promoting a sexual performance by a child (PenalLaw § 263.15). We reject defendant's contention that his waiver of the right toappeal was invalid. County Court " 'expressly ascertained from defendant that, as acondition of the plea, he was agreeing to waive his right to appeal, and the court did notconflate that right with those automatically forfeited by a guilty plea' " (People v Porter, 55 AD3d1313, 1313 [2008], lv denied 11 NY3d 899 [2008]). The valid waiver of theright to appeal encompasses defendant's challenge to the severity of the sentence (seeid.). To the extent that defendant's contention that the court erred in denying hismotion to withdraw his plea of guilty survives the valid waiver of the right to appeal (see People v Barnello, 56AD3d 1214, 1215 [2008], lv denied 12 NY3d 780 [2009]), we conclude thatit lacks merit (see People vCanales, 48 AD3d 1105, 1105-1106 [2008], lv denied 10 NY3d 860[2008]). Present—Centra, J.P., Fahey, Lindley, Sconiers and Whalen, JJ.