PEOPLE v. GUARE (2007)

Appeals by the defendant from two judgments of the Supreme Court, Kings County (Firetog, J., at plea;  D'Emic, J., at sentencing), both rendered March 23, 2004, convicting him of criminal contempt in the first degree and criminal contempt in the second degree under Indictment No. 2605/2002, and assault in the second degree under Indictment No. 3387/2003, upon his pleas of guilty, and imposing sentences.

ORDERED that the judgments are affirmed.

The defendant's purported waiver of his right to appeal was not valid (see People v. Moyett, 7 N.Y.3d 892, 893, 826 N.Y.S.2d 597, 860 N.E.2d 59;  People v. Lopez, 6 N.Y.3d 248, 257, 811 N.Y.S.2d 623, 844 N.E.2d 1145) and, thus, does not preclude the defendant's challenge to his sentence, upon his conviction for assault in the second degree, as excessive.   However, that sentence was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

To the extent that the defendant contends that post-release supervision should not be a part of his sentences, neither the sentencing minutes nor the order of commitment mentioned the imposition of any period of post-release supervision.   Therefore, the sentences actually imposed by the court never included, and do not now include, any period of postrelease supervision (see Hill v. United States ex rel. Wampler, 298 U.S. 460, 56 S.Ct. 760, 80 L.Ed. 1283;  People v. Thompson, 39 A.D.3d 572, 573, 831 N.Y.S.2d 720;  People v. Benson, 38 A.D.3d 563, 564, 831 N.Y.S.2d 266;  People v. Smith, 37 A.D.3d 499, 829 N.Y.S.2d 226;  Earley v. Murray, 451 F.3d 71, rehearing denied 462 F.3d 147, cert. denied --- U.S. ----, 127 S.Ct. 3014, 168 L.Ed.2d 752;  but see People v. Sparber, 34 A.D.3d 265, 823 N.Y.S.2d 405).

The defendant's remaining contention is unpreserved for appellate review and, in any event, without merit.