         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1472
KA 12-00204
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DAVID F. MCNAMARA, DEFENDANT-APPELLANT.


DAVID P. ELKOVITCH, AUBURN, 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 October 25, 2011. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of a forged
instrument in the second degree and criminal sale of a controlled
substance in the fourth 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 possession of a forged instrument
in the second degree (Penal Law § 170.25) and criminal sale of a
controlled substance in the fourth degree (§ 220.34 [1]). Defendant
concededly waived his right to appeal, which forecloses his present
challenge to the severity of his sentence (see People v Hubert, 100
AD3d 1443, 1444).

     Defendant further contends that his federal constitutional rights
were violated when the Cayuga County Probation Department conducted
his presentence interview in the absence of counsel and that his
resulting statements should have therefore been suppressed and
stricken from the presentence report. Even assuming, arguendo, that
this contention survives defendant’s waiver of his right to appeal, we
nevertheless reject it; the federal constitution does not entitle a
defendant to the presence of counsel at that stage of a criminal
proceeding (see United States v Tisdale, 952 F2d 934, 939-940; United
States v Jackson, 886 F2d 838, 844; see also People v Cortijo, 291
AD2d 352, 352, lv denied 98 NY2d 674). In any event, defendant was
sentenced in accordance with a plea agreement and sentencing promise
that preceded both the presentence interview and the preparation of
the presentence report. Thus, any error in the court’s refusal to
suppress his statements therein is harmless (see People v Williamson,
72 AD3d 1339, 1339, lv denied 15 NY3d 779; People v Vaughan, 20 AD3d
                                 -2-                          1472
                                                         KA 12-00204

940, 941-942, lv denied 5 NY3d 857; People v Vasquez, 256 AD2d 83, 83,
lv denied 93 NY2d 880; People v Tavarez, 235 AD2d 278, 278).




Entered:   February 8, 2013                    Frances E. Cafarell
                                               Clerk of the Court
