June 7, 2013
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
MICHAEL R. HOYT, DEFENDANT-APPELLANT.
Appeal from a judgment of the Erie County Court (Kenneth F. Case, J.), rendered March 16, 2011. The judgment convicted defendant, upon his plea of guilty, of criminal sexual act in the first degree.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (VINCENT F. GUGINO OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID PANEPINTO OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.
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 criminal sexual act in the first degree (Penal Law § 130.50 ). Contrary to defendant's contention, the record establishes that he knowingly, voluntarily and intelligently waived the right to appeal (see generally People v Lopez, 6 N.Y.3d 248, 256), and that valid waiver forecloses any challenge by defendant to the severity of the sentence (see id. at 255; see generally People v Lococo, 92 N.Y.2d 825, 827). Defendant's valid waiver of the right to appeal does not encompass his further contention that County Court erred in failing to take into account the jail time credit to which he is entitled in determining the duration of the order of protection (see People v Farrell, 71 A.D.3d 1507, 1507, lv denied 15 N.Y.3d 804). Nevertheless, defendant failed to preserve that contention for our review, and we decline to exercise our power to review it as a matter of discretion in the interest of justice (see id.).