PEOPLE v. LUKE

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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Scott LUKE, Defendant-Appellant.

Decided: March 21, 2001

PRESENT:  PIGOTT, JR., P.J., GREEN, WISNER, KEHOE and BURNS, JJ. Robert B. Hallborg, Jr., for defendant-appellant. Raymond C. Herman, for plaintiff-respondent.

In stating on the record that defendant “should serve a long time and not be released to parole until it's absolutely mandatory”, the sentencing court did not depart from the plea bargain or in effect impose a determinate term of nine years.   Thus, contrary to defendant's contention, the indeterminate term of incarceration of 4 1/212 to 9 years imposed by County Court is legal (see, Penal Law § 70.04 [former (3), (4)] ).   Defendant's waiver of the right to appeal, which is valid and all-encompassing on its face (see generally, People v. Kemp, 94 N.Y.2d 831, 833, 703 N.Y.S.2d 59, 724 N.E.2d 754), bars consideration of defendant's challenge to the severity of the sentence (see, People v. Lococo, 92 N.Y.2d 825, 827, 677 N.Y.S.2d 57, 699 N.E.2d 416;  People v. Hidalgo, 91 N.Y.2d 733, 737, 675 N.Y.S.2d 327, 698 N.E.2d 46).

Judgment unanimously affirmed.

MEMORANDUM: