           SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

463
KA 11-01480
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

MICHAEL R. HOYT, DEFENDANT-APPELLANT.


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.


     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.

     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 [3]). 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 NY3d 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 NY2d 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 AD3d 1507, 1507, lv denied 15 NY3d 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.).




Entered:   June 7, 2013                            Frances E. Cafarell
                                                   Clerk of the Court
