PEOPLE v. EDWARDS (2009)

 Defendant appeals from a judgment convicting him upon his plea of guilty of rape in the first degree (Penal Law § 130.35[1] ) and course of sexual conduct against a child in the first degree (§ 130.75[1][b] ).  We agree with defendant that his waiver of the right to appeal was invalid because it is unclear on the record before us whether he “may have erroneously believed that the right to appeal is automatically extinguished upon entry of a guilty plea” (People v. Moyett, 7 N.Y.3d 892, 893, 826 N.Y.S.2d 597, 860 N.E.2d 59).   Although the waiver thus does not encompass defendant's challenge to the severity of the sentence (see generally People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145), we reject that challenge.  “Defendant was sentenced in accordance with the plea bargain and should be bound by its terms” (People v. McGovern, 265 A.D.2d 881, 696 N.Y.S.2d 730, lv. denied 94 N.Y.2d 882, 705 N.Y.S.2d 14, 726 N.E.2d 491;  see People v. Lake, 45 A.D.3d 1409, 845 N.Y.S.2d 649, lv. denied 10 N.Y.3d 767, 854 N.Y.S.2d 329, 883 N.E.2d 1264).   Finally, defendant failed to preserve for our review his contention that County Court failed to take into account the jail time credit to which he is entitled in determining the duration of the order of protection (see People v. Nieves, 2 N.Y.3d 310, 315-317, 778 N.Y.S.2d 751, 811 N.E.2d 13), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).

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

MEMORANDUM: