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

1269
KA 15-01395
PRESENT: WHALEN, P.J., SMITH, CARNI, DEJOSEPH, AND CURRAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

BRETT E. COPES, DEFENDANT-APPELLANT.


CHARLES A. MARANGOLA, MORAVIA, FOR DEFENDANT-APPELLANT.

JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF
COUNSEL), FOR RESPONDENT.


     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, lv denied 21 NY3d 1019; People v Foster,
281 AD2d 902, 902, lv denied 96 NY2d 862; see generally People v
Lopez, 6 NY3d 248, 256).

     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, lv denied 25 NY3d 1160), 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, lv denied 13 NY3d 745;
People v Carlton, 2 AD3d 1353, 1354, lv denied 1 NY3d 625; see also
People v Hardy, 32 AD3d 1317, 1318, lv denied 7 NY3d 925). Inasmuch
as defendant’s prior violent felony conviction rendered him ineligible
                                 -2-                          1269
                                                         KA 15-01395

for a sentence of parole supervision (see CPL 410.91 [2]), “there was
no . . . unfulfilled sentencing promise” (Carlton, 2 AD3d at 1354; see
People v Tallman, 92 AD3d 1082, 1083, lv denied 20 NY3d 1065). To the
extent that defendant contends that the attorneys and the court
assured him that he would be eligible for a parole supervision
sentence, that contention is belied by his acknowledgment during the
plea colloquy that no off-the-record promises had been made to induce
him to plead guilty (see People v Sanchez, 184 AD2d 537, 538, lv
denied 80 NY2d 909; see also Brady, 122 AD3d at 1010-1011).




Entered:   December 23, 2016                   Frances E. Cafarell
                                               Clerk of the Court
