Opinion
November 12, 1999
Appeal from Judgment of Erie County Court, DiTullio, J. — Attempted Robbery, 1st Degree.
PRESENT: LAWTON, J. P., HAYES, PIGOTT, JR., HURLBUTT AND BALIO, JJ.
Judgment unanimously modified on the law and as modified affirmed and matter remitted to Erie County Court for further proceedings in accordance with the following Memorandum: The record establishes that defendant's waiver of the right to appeal was knowing, intelligent and voluntary (see, People v. Moissett, 76 N.Y.2d 909; People v. Saunders, 190 A.D.2d 1092, 1093, lv denied 81 N.Y.2d 1019). The contentions of defendant that County Court erred in failing to suppress a showup identification and physical evidence allegedly recovered as a result of an illegal custodial interrogation do not survive that waiver (see, People v. Vaccaro, 206 A.D.2d 952, 953, lv denied 84 N.Y.2d 940).
Defendant's further contention that the sentence is illegal survives the waiver of the right to appeal (see, People v. Seaberg, 74 N.Y.2d 1, 9). Indeed, the People candidly concede that defendant's sentence is illegal and that the matter must be remitted to County Court to afford defendant the opportunity to withdraw his guilty plea or be resentenced (see, People v. Martinez, 213 A.D.2d 1072, 1073). Consequently, we modify the judgment by vacating the sentence (see, CPL 470.15 [c]), and we remit the matter to Erie County Court for that purpose.