THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. COREY BROWN DEFENDANT APPELLANT (2011)

Supreme Court, Appellate Division, Fourth Department, New York.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. COREY A. BROWN, DEFENDANT–APPELLANT.

KA 10–01111

Decided: April 29, 2011

PRESENT: SCUDDER, P.J., FAHEY, CARNI, GREEN, AND GORSKI, JJ.

MICHAEL F. DONNELLY, SYRACUSE, FOR DEFENDANT–APPELLANT. JOSEPH V. CARDONE, DISTRICT ATTORNEY, ALBION (KATHERINE BOGAN OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

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

Memorandum: On appeal from a judgment convicting him upon his plea of guilty of rape in the third degree (Penal Law § 130.25[2] ), defendant contends that County Court improperly considered prior criminal charges that did not result in convictions when it imposed sentence and thus that the sentence is illegal. Defendant's valid waiver of the right to appeal does “not encompass the right to challenge the legality of the sentencing procedure on appeal” (People v. Nicholson, 237 A.D.2d 973, 974, lv denied 90 N.Y.2d 908), nor is preservation required to challenge the legality of a sentence (see generally People v. Samms, 95 N.Y.2d 52, 56). Nevertheless, the record does not support defendant's contention.

Patricia L. Morgan

Clerk of the Court

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