PEOPLE v. MCGOWAN (2022)

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Dutchess County (Edward T. McLoughlin, J.), rendered July 7, 2021, convicting him of strangulation in the second degree and criminal contempt in the second degree, upon his plea of guilty, and sentencing him to a determinate term of imprisonment of six years to be followed by a period of postrelease supervision of five years on the conviction of strangulation in the second degree, to run concurrently with a definite term of imprisonment of one year on the conviction of criminal contempt in the second degree.

ORDERED that the judgment is modified, on the law, by reducing the period of postrelease supervision imposed on the conviction of strangulation in the second degree from five years to three years;  as so modified, the judgment is affirmed.

The record demonstrates that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Sanders, 25 N.Y.3d 337, 340–342, 12 N.Y.S.3d 593, 34 N.E.3d 344;  People v. Lopez, 6 N.Y.3d 248, 256–257, 811 N.Y.S.2d 623, 844 N.E.2d 1145;  People v. Morrow, 198 A.D.3d 922, 923, 152 N.Y.S.3d 840).

Although the defendant's contention that his plea of guilty was not knowing, voluntary, and intelligent survives his valid waiver of the right to appeal (see People v. Morrow, 198 A.D.3d at 923, 152 N.Y.S.3d 840), the defendant failed to preserve this contention for appellate review, since he did not move to withdraw his plea or otherwise raise this issue before the County Court (see CPL 470.05[2];  People v. Peque, 22 N.Y.3d 168, 182, 980 N.Y.S.2d 280, 3 N.E.3d 617;  People v. Olmos, 199 A.D.3d 711, 153 N.Y.S.3d 898).  In any event, the record demonstrates that the defendant's plea was entered knowingly, voluntarily, and intelligently (see People v. Garcia, 92 N.Y.2d 869, 870, 677 N.Y.S.2d 772, 700 N.E.2d 311;  People v. Principato, 194 A.D.3d 851, 147 N.Y.S.3d 135;  People v. Leasure, 177 A.D.3d 770, 772, 114 N.Y.S.3d 367;  People v. Moss, 166 A.D.3d 655, 84 N.Y.S.3d 915).

As the People correctly concede, the period of postrelease supervision imposed on the conviction of strangulation in the second degree was illegal (see Penal Law § 70.45[2][e]).  Accordingly, we modify the judgment by reducing the period of postrelease supervision imposed on that conviction to the extent indicated herein (see People v. Wright, 199 A.D.3d 1025, 154 N.Y.S.3d 814;  People v. Brown, 192 A.D.3d 1134, 141 N.Y.S.3d 364).

The defendant's valid waiver of his right to appeal precludes appellate review of his contention that the terms of imprisonment imposed were excessive (see People v. Lopez, 6 N.Y.3d at 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145).

The defendant's remaining contentions are without merit (see People v. Outley, 80 N.Y.2d 702, 712, 594 N.Y.S.2d 683, 610 N.E.2d 356;  People v. Weinsheimer, 68 A.D.3d 901, 890 N.Y.S.2d 128;  People v. Williams, 195 A.D.2d 492, 493, 599 N.Y.S.2d 848).

BRATHWAITE NELSON, J.P., RIVERA, MALTESE and GENOVESI, JJ., concur.