PEOPLE v. MONTGOMERY (2009)

 On appeal from a judgment convicting him upon his plea of guilty of manslaughter in the first degree (Penal Law § 125.20[1] ), defendant challenges the validity of his waiver of the right to appeal.   We reject that challenge (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145;  People v. Washington, 53 A.D.3d 1120, 859 N.Y.S.2d 883, lv. denied 11 N.Y.3d 796, 866 N.Y.S.2d 622, 896 N.E.2d 108).   Although the contention of defendant that Supreme Court erred in denying his motion to withdraw the plea survives his valid waiver of the right to appeal, that contention is without merit.   The contention of defendant that the plea was coerced is belied by his statements during the plea colloquy (see People v. Gimenez, 59 A.D.3d 1088, 872 N.Y.S.2d 625;  People v. Farley, 34 A.D.3d 1229, 824 N.Y.S.2d 517, lv. denied 8 N.Y.3d 880, 832 N.Y.S.2d 492, 864 N.E.2d 622).   In addition, the record belies the further contention of defendant that he was misled with respect to his potential sentence prior to entering the plea (see generally People v. Elmore [appeal No. 2], 57 A.D.3d 1507, 870 N.Y.S.2d 651).   Further, we reject the contention of defendant that he should have been permitted to withdraw his plea based on defense counsel's incorrect statement that he could withdraw his plea at any time before sentencing.   The issue whether defense counsel made the alleged statement presented a credibility issue that the court was entitled to resolve against defendant after affording him a reasonable opportunity to be heard (see People v. Dozier, 12 A.D.3d 1176, 785 N.Y.S.2d 249;  People v. Stephens, 6 A.D.3d 1123, 1124, 775 N.Y.S.2d 684, lv. denied 3 N.Y.3d 663, 782 N.Y.S.2d 705, 816 N.E.2d 578, 3 N.Y.3d 682, 784 N.Y.S.2d 20, 817 N.E.2d 838;  see also People v. Irvine, 42 A.D.3d 949, 838 N.Y.S.2d 765, lv. denied 9 N.Y.3d 962, 848 N.Y.S.2d 31, 878 N.E.2d 615).

 Although the further contention of defendant that the court failed to apprehend the extent of its discretion to impose a lesser period of postrelease supervision also survives his waiver of the right to appeal, that contention is without merit (see People v. Burgess, 23 A.D.3d 1095, 805 N.Y.S.2d 216, lv. denied 6 N.Y.3d 810, 812 N.Y.S.2d 450, 845 N.E.2d 1281;  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;  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;  cf. People v. Stanley, 309 A.D.2d 1254, 767 N.Y.S.2d 712).   Finally, defendant's challenge to the severity of the sentence is encompassed by the waiver by defendant of the right to appeal (see Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145;  People v. Hidalgo, 91 N.Y.2d 733, 737, 675 N.Y.S.2d 327, 698 N.E.2d 46).

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

MEMORANDUM: