Opinion
2014-03-28
The PEOPLE of the State of New York, Respondent, v. Che A. VILLAR, Defendant–Appellant.
Appeal from a judgment of the Niagara County Court (Sara S. Farkas, J.), rendered December 4, 2012. The judgment convicted defendant, upon his plea of guilty, of promoting a sexual performance by a child (three counts) and failure to register as a sex offender. David J. Farrugia, Public Defender, Lockport (Joseph G. Frazier of Counsel), for Defendant–Appellant. Michael J. Violante, District Attorney, Lockport (Thomas H. Brandt of Counsel), for Respondent.
Appeal from a judgment of the Niagara County Court (Sara S. Farkas, J.), rendered December 4, 2012. The judgment convicted defendant, upon his plea of guilty, of promoting a sexual performance by a child (three counts) and failure to register as a sex offender.
David J. Farrugia, Public Defender, Lockport (Joseph G. Frazier of Counsel), for Defendant–Appellant. Michael J. Violante, District Attorney, Lockport (Thomas H. Brandt of Counsel), for Respondent.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon his plea of guilty of, inter alia, three counts of promoting a sexual performance by a child (Penal Law § 263.15). We reject defendant's contention that his waiver of the right to appeal was invalid. County Court “ ‘expressly ascertained from defendant that, as a condition of the plea, he was agreeing to waive his right to appeal, and the court did not conflate that right with those automatically forfeited by a guilty plea’ ” ( People v. Porter, 55 A.D.3d 1313, 1313, 865 N.Y.S.2d 800,lv. denied11 N.Y.3d 899, 873 N.Y.S.2d 275, 901 N.E.2d 769). The valid waiver of the right to appeal encompasses defendant's challenge to the severity of the sentence ( see id.). To the extent that defendant's contention that the court erred in denying his motion to withdraw his plea of guilty survives the valid waiver of the right to appeal ( see People v. Barnello, 56 A.D.3d 1214, 1215, 867 N.Y.S.2d 625,lv. denied 12 N.Y.3d 780, 879 N.Y.S.2d 57, 906 N.E.2d 1091), we conclude that it lacks merit ( see People v. Canales, 48 A.D.3d 1105, 1105–1106, 852 N.Y.S.2d 513,lv. denied10 N.Y.3d 860, 860 N.Y.S.2d 487, 890 N.E.2d 250).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed. CENTRA, J.P., FAHEY, LINDLEY, SCONIERS, and WHALEN, JJ., concur.