         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
841
KA 09-02286
PRESENT: SCUDDER, P.J., SMITH, CARNI, GREEN, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

TIMOTHY WARGULA, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (VINCENT F. GUGINO OF
COUNSEL), FOR DEFENDANT-APPELLANT.

TIMOTHY WARGULA, DEFENDANT-APPELLANT PRO SE.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (J. MICHAEL MARION OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Penny
M. Wolfgang, J.), rendered July 21, 2009. The judgment convicted
defendant, upon his plea of guilty, of manslaughter 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 manslaughter in the first degree (Penal
Law § 125.20 [1]). Even assuming, arguendo, that defendant’s waiver
of the right to appeal is invalid and thus that his contentions on
appeal are not encompassed by the waiver, we nevertheless conclude
that they are without merit. We reject defendant’s contention that
Supreme Court misapprehended the scope of its discretionary authority
when it imposed a five-year period of postrelease supervision inasmuch
as defendant was sentenced in accordance with the plea agreement
providing that he would be sentenced to a determinate term of
imprisonment of 18 years and to five years of postrelease supervision
(see generally People v McCrimager, 81 AD3d 1324). We conclude that
the court’s reliance on the presentence report for its determination
that defendant would not be afforded youthful offender status
“constitutes an adequate explanation for the denial of defendant’s
request for such status” (People v Lewis, 49 AD3d 1290, 1291; see
People v DePugh, 16 AD3d 1083, 1084; cf. People v Lee, 79 AD3d 1641;
see generally CPL 720.20 [1]). We reject defendant’s further
contention that the sentence is unduly harsh and severe. We have
reviewed defendant’s remaining contentions, including the contention
raised in his pro se supplemental brief, and conclude that they are
                          -2-                  841
                                         KA 09-02286

without merit.




Entered:   July 1, 2011         Patricia L. Morgan
                                Clerk of the Court
