THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. ERIC MCMULLEN DEFENDANT APPELLANT

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

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. ERIC MCMULLEN, DEFENDANT–APPELLANT.

KA 08–02524

Decided: April 20, 2012

PRESENT:  CENTRA, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ. FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF COUNSEL), FOR DEFENDANT–APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

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

Memorandum:  Defendant appeals from a judgment convicting him upon his plea of guilty of robbery in the first degree (Penal Law § 160.15[3] ).   The record of the plea colloquy establishes that defendant knowingly, voluntarily and intelligently waived his right to appeal (see People v. Lopez, 6 NY3d 248, 256;  People v. Eatmon, 66 AD3d 1453, 1453).   That valid waiver of the right to appeal encompasses defendant's contention that imposition of the maximum period of postrelease supervision rendered the sentence unduly harsh and severe (see People v. Hidalgo, 91 N.Y.2d 733, 737;  People v. Wilson, 53 AD3d 928, 929, lv denied 11 NY3d 858).   Defendant's further contention that County Court erred in failing to apprehend the extent of its discretion in imposing a period of postrelease supervision survives the waiver of the right to appeal (see People v. Montgomery, 63 AD3d 1635, 1636, lv denied 13 NY3d 798;  People v. Burgess, 23 AD3d 1095, lv denied 6 NY3d 810).   We conclude, however, that “[t]he court's statement at the plea proceeding with respect to the imposition of a five-year period of postrelease supervision does not, without more, indicate that the court erroneously believed that it lacked discretion to impose a shorter period” (People v. Porter, 9 AD3d 887, lv denied 3 NY3d 710).

Frances E. Cafarell

Clerk of the Court