Opinion
2012-04-20
The PEOPLE of the State of New York, Respondent, v. Eric McMULLEN, Defendant–Appellant.
Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.), rendered November 13, 2008. The judgment convicted defendant, upon his plea of guilty, of robbery in the first degree.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.
Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.), rendered November 13, 2008. The judgment convicted defendant, upon his plea of guilty, of robbery in the first degree.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:
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 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145; People v. Eatmon, 66 A.D.3d 1453, 1453, 885 N.Y.S.2d 693). 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, 675 N.Y.S.2d 327, 698 N.E.2d 46; People v. Wilson, 53 A.D.3d 928, 929, 861 N.Y.S.2d 539, lv. denied 11 N.Y.3d 858, 872 N.Y.S.2d 81, 900 N.E.2d 564). 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 A.D.3d 1635, 1636, 880 N.Y.S.2d 811, lv. denied 13 N.Y.3d 798, 887 N.Y.S.2d 548, 916 N.E.2d 443; People v. Burgess, 23 A.D.3d 1095, 805 N.Y.S.2d 216, lv. denied 6 N.Y.3d 810, 812 N.Y.S.2d 450, 845 N.E.2d 1281). 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 A.D.3d 887, 779 N.Y.S.2d 684, lv. denied 3 N.Y.3d 710, 785 N.Y.S.2d 38, 818 N.E.2d 680).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.