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

358
KA 13-00328
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

CHE A. VILLAR, DEFENDANT-APPELLANT.


DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (JOSEPH G. FRAZIER OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Niagara County Court (Sara S.
Farkas, J.), rendered December 4, 2012. The judgment convicted
defendant, upon his plea of guilty, of promoting a sexual performance
by a child (three counts) and failure to register as a sex offender.

     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, inter alia, three counts of promoting a
sexual performance by a child (Penal Law § 263.15). We reject
defendant’s contention that his waiver of the right to appeal was
invalid. County Court “ ‘expressly ascertained from defendant that,
as a condition of the plea, he was agreeing to waive his right to
appeal, and the court did not conflate that right with those
automatically forfeited by a guilty plea’ ” (People v Porter, 55 AD3d
1313, 1313, lv denied 11 NY3d 899). The valid waiver of the right to
appeal encompasses defendant’s challenge to the severity of the
sentence (see id.). To the extent that defendant’s contention that
the court erred in denying his motion to withdraw his plea of guilty
survives the valid waiver of the right to appeal (see People v
Barnello, 56 AD3d 1214, 1215, lv denied 12 NY3d 780), we conclude that
it lacks merit (see People v Canales, 48 AD3d 1105, 1105-1106, lv
denied 10 NY3d 860).




Entered:    March 28, 2014                         Frances E. Cafarell
                                                   Clerk of the Court
