People v. Villar

115 A.D.3d 1361, 982 N.Y.S.2d 804

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 28, 2014
• Status: Published

Opinion

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.

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, 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 AD3d 1313, 1313 [2008], lv denied 11 NY3d 899 [2008]). 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 AD3d 1214, 1215 [2008], lv denied 12 NY3d 780 [2009]), we conclude that it lacks merit (see People v Canales, 48 AD3d 1105, 1105-1106 [2008], lv denied 10 NY3d 860 [2008]).

Present — Centra, J.E, Fahey, Lindley, Sconiers and Whalen, JJ.