People v. Nolcox

40 A.D.3d 1128, 834 N.Y.S.2d 883

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 29, 2007
• Status: Published

Opinion

— Appeal by the defendant, as limited by his brief, from a sentence of the County Court, Orange County (DeRosa, J.), imposed November 14, 2005, upon his conviction of criminal possession of a weapon in the third degree, after his plea of guilty.

Ordered that the sentence is affirmed.

The defendant’s valid waiver of his right to appeal forecloses review of his claim that the sentence imposed is excessive (see People v Oquendo, 38 AD3d 686 [2007]). The defendant’s contention, however, that the court failed to exercise its discretion at sentencing (cf. People v Farrar, 52 NY2d 302, 306 [1981]; People v Tomlinson, 162 AD2d 563 [1990]) survives the defendant’s waiver of his right to appeal (see People v Halston, 37 AD3d 1144 [2007]; People v Schafer, 19 AD3d 1133 [2005]). Nevertheless, the defendant’s contention is without merit (cf. People v Farrar, supra; People v Tomlinson, supra; People v Terry, 152 AD2d 822 [1989]; People v Dorino, 145 AD2d 432, 433 [1988]). Crane, J.E, Ritter, Lifson and Balkin, JJ., concur.