PEOPLE v. BURGESS (2005)

 Defendant appeals from a judgment convicting him upon his plea of guilty of three counts of robbery in the second degree (Penal Law § 160.10[2] [b] ) and one count of attempted robbery in the second degree (§§ 110.00, 160.10[2][b] ).  Contrary to the contention of defendant, his unqualified waiver of the right to appeal is valid and encompasses his challenge to the severity of the sentence (see People v. Lococo, 92 N.Y.2d 825, 827, 677 N.Y.S.2d 57, 699 N.E.2d 416;  People v. Hidalgo, 91 N.Y.2d 733, 737, 675 N.Y.S.2d 327, 698 N.E.2d 46).   Although defendant's further contention that Supreme Court failed to apprehend the extent of its discretion in imposing a period of postrelease supervision is not encompassed by the waiver of the right to appeal (see People v. Porter, 9 A.D.3d 887, 779 N.Y.S.2d 684, lv. denied 3 N.Y.3d 710, 785 N.Y.S.2d 38, 818 N.E.2d 680;  People v. Stanley, 309 A.D.2d 1254, 767 N.Y.S.2d 712), we conclude that defendant's contention lacks merit.  “The court's statement ․ with respect to the imposition of a five-year period of postrelease supervision does not, without more, indicate that the court erroneously believed that it lacked discretion to impose a shorter period” (Porter, 9 A.D.3d at 887, 779 N.Y.S.2d 684;  see People v. Tyes, 9 A.D.3d 899, 779 N.Y.S.2d 388, lv. denied 3 N.Y.3d 682, 784 N.Y.S.2d 21, 817 N.E.2d 839;  cf. Stanley, 309 A.D.2d at 1254-1255, 767 N.Y.S.2d 712).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: