Opinion
2013-10-24
The PEOPLE of the State of New York, Respondent, v. Ruben Morales–LOPEZ, Also Known as Ruben Morales, Appellant.
Gerard V. Amedio, Saratoga Springs, for appellant. Kevin C. Kortright, District Attorney, Fort Edward (Katherine G. Henley of counsel), for respondent.
Gerard V. Amedio, Saratoga Springs, for appellant. Kevin C. Kortright, District Attorney, Fort Edward (Katherine G. Henley of counsel), for respondent.
Before: LAHTINEN, J.P., STEIN, SPAIN and , JJ.
, J.
Appeal from a judgment of the County Court of Washington County (McKeighan, J.), rendered October 14, 2011, convicting defendant upon his plea of guilty of the crime of burglary in the first degree.
Defendant was charged in a seven-count indictment with numerous crimes stemming from his unlawful entry into his former wife's home, during the course of which he punched and strangled her in the presence—or within earshot—of their two small children. In full satisfaction of that indictment, defendant pleaded guilty to burglary in the first degree and waived his right to appeal with the express understanding that County Court would sentence him to a period of imprisonment ranging from 10 to 14 years, together with a period of postrelease supervision ranging from 2 1/2 to 5 years. County Court thereafter sentenced defendant to 14 years in prison followed by five years of postrelease supervision. Defendant now appeals.
We affirm. Although defendant asserts that the sentence imposed, which fell within the range promised by County Court, is harsh and excessive, he is “precluded from raising this claim given his valid waiver of the right to appeal” ( People v. Cano, 93 A.D.3d 994, 994, 939 N.Y.S.2d 894 [2012],lv. denied19 N.Y.3d 995, 951 N.Y.S.2d 471, 975 N.E.2d 917 [2012];see People v. Lewis, 95 A.D.3d 1442, 1443, 944 N.Y.S.2d 388 [2012],lv. denied19 N.Y.3d 998, 951 N.Y.S.2d 474, 975 N.E.2d 920 [2012] ). Assuming, without deciding, that such waiver does not also encompass County Court's alleged violation of CPL 380.50, defendant failed to preserve this argument by registering an appropriate objection at the sentencing hearing—at which time the asserted omission could have been remedied ( cf. People v. Cianfarani, 81 A.D.3d 998, 999, 916 N.Y.S.2d 650 [2011];People v. Wallace, 29 A.D.3d 1085, 1085, 814 N.Y.S.2d 400 [2006],lv. denied7 N.Y.3d 796, 821 N.Y.S.2d 826, 854 N.E.2d 1290 [2006] ). Finally, by pleading guilty and waiving his right to appeal, defendant forfeited any claim that the order of protection issued by County Court was overbroad ( see People v. Trombley, 91 A.D.3d 1197, 1200, 937 N.Y.S.2d 665 [2012],lv. denied21 N.Y.3d 914, 966 N.Y.S.2d 366, 988 N.E.2d 895 [2013] ).
That said, defendant retains the right to apply to County Court for a modification of the order of protection.
ORDERED that the judgment is affirmed.
LAHTINEN, J.P., STEIN and SPAIN, JJ., concur.