People v. Copes

Appeal from a judgment of the Cayuga County Court (Mark H. Fandrich, A.J.), rendered July 7, 2015. The judgment convicted defendant, upon his plea of guilty, of attempted criminal possession of a controlled substance in the third degree and criminally using drug paraphernalia in the second degree.

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 attempted criminal possession of a controlled substance in the third degree (Penal Law §§ 110.00, 220.16 [1]) and criminally using drug paraphernalia in the second degree (§ 220.50 [3]). Defendant does not challenge the validity of his waiver of the right to appeal, and his valid waiver encompasses his contention that the sentence is unduly harsh and severe (see People v Ruffin, 101 AD3d 1793 , 1793 [2012], lv denied 21 NY3d 1019 [2013]; People v Foster, 281 AD2d 902 , 902 [2001], lv denied 96 NY2d 862 [2001]; see generally People v Lopez, 6 NY3d 248 , 256 [2006]).

Defendant further contends that the court violated the terms of the plea agreement by failing to impose a sentence of parole supervision pursuant to CPL 410.91. Although that contention implicates the voluntariness of defendant’s guilty plea and therefore survives his waiver of the right to appeal (see People v Brady, 122 AD3d 1009 , 1010 [2014], lv denied 25 NY3d 1160 [2015]), we conclude that it is without merit. The record establishes that the court did not promise defendant a sentence of parole supervision, but merely stated that it was willing to impose such a sentence if defendant was eligible for it (see People v Hernandez, 62 AD3d 1095 , 1097 [2009], lv denied 13 NY3d 745 [2009]; People v Carlton, 2 AD3d 1353 , 1354 [2003],

Present—Whalen, P.J., Smith, Carni, DeJoseph and Curran, JJ.