PEOPLE v. TOLLIVER (2008)

Defendant appeals from a judgment convicting him upon his plea of guilty of criminal possession of a forged instrument in the second degree (Penal Law § 170.25).   Although defendant's waiver of the right to appeal is valid (cf. People v. Vega, 49 A.D.3d 1185, 852 N.Y.S.2d 910;  see generally People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145), that waiver does not encompass defendant's challenge to the severity of the sentence inasmuch as defendant waived his right to appeal before Supreme Court advised him of the maximum sentence that could be imposed (see People v. Mingo, 38 A.D.3d 1270, 1271, 832 N.Y.S.2d 721;  see generally People v. Lococo, 92 N.Y.2d 825, 827, 677 N.Y.S.2d 57, 699 N.E.2d 416).   Nevertheless, we conclude that the sentence is not unduly harsh or severe.   Defendant's remaining contention with respect to the alleged inaccuracy in the presentence report is not preserved for our review (see CPL 470.05[2];  People v. Karlas, 208 A.D.2d 767, 617 N.Y.S.2d 778), and we decline to exercise our power to review it 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: