Opinion
December 23, 1994
Appeal from the Supreme Court, Erie County, Rossetti, J.
Present — Denman, P.J., Green, Balio, Callahan and Boehm, JJ.
Judgment unanimously affirmed. Memorandum: The contention of defendant that his sentence is unduly harsh or excessive does not survive the voluntary, knowing and intelligent waiver of his right to appeal (see, People v Allen, 82 N.Y.2d 761; People v Saunders, 190 A.D.2d 1092, lv denied 81 N.Y.2d 1019).
The further contention of defendant that his sentence should be modified because he was under the impression that he would receive a maximum term of 25 to 50 years imprisonment is without merit. The record establishes that the court repeatedly refused to commit to a promised sentence. Moreover, defendant's sentence will be reduced by operation of law to the statutory maximum (see, Penal Law § 70.30 [c] [iii]). The statutory calculation will be made by the Department of Correctional Services (see, People v Beaufort-Cutner, 190 A.D.2d 992, 994, lv denied 81 N.Y.2d 1011; People v Bachman, 158 A.D.2d 930, lv denied 75 N.Y.2d 963).
Defendant's remaining contention is without merit.