SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
93
KA 10-01029
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
DEVON L. DAVIS, DEFENDANT-APPELLANT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF
COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Supreme Court, Monroe County
(Francis A. Affronti, J.), rendered March 9, 2010. The judgment
convicted defendant, upon his plea of guilty, of kidnapping in the
second degree, criminal sexual act in the first degree and robbery 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 kidnapping in the second degree (Penal Law
§ 135.20), criminal sexual act in the first degree (§ 130.50 [1]) and
robbery in the second degree (§ 160.10 [1]). Defendant failed to
preserve for our review his contention that his plea was not knowing,
voluntary and intelligent because Supreme Court imposed a longer
period of postrelease supervision (PRS) than it promised at the time
of the plea. Contrary to defendant’s further contention, preservation
is required. The record establishes that “defendant was advised of
what the sentence would be, including its PRS term, at the outset of
the sentencing proceeding. Because defendant could have sought relief
from the sentencing court in advance of the sentence’s imposition,
[the] rationale [of People v Louree (8 NY3d 541, 546)] for dispensing
with the preservation requirement is not presently applicable” (People
v Murray, 15 NY3d 725, 727; see People v Peque, 22 NY3d 168, ___ [Nov.
19, 2013]).
Even assuming, arguendo, that defendant’s waiver of the right to
appeal was invalid and thus does not preclude our review of his
challenge to the severity of his sentence (see People v Williams, 46
AD3d 1424, 1425; People v Whipple, 37 AD3d 1148, 1148, lv denied 8
NY3d 928), we nevertheless conclude that the sentence is not unduly
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KA 10-01029
harsh or severe.
Entered: February 7, 2014 Frances E. Cafarell
Clerk of the Court