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

591
KA 10-01111
PRESENT: SCUDDER, P.J., FAHEY, CARNI, GREEN, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

COREY A. BROWN, DEFENDANT-APPELLANT.


MICHAEL F. DONNELLY, SYRACUSE, FOR DEFENDANT-APPELLANT.

JOSEPH V. CARDONE, DISTRICT ATTORNEY, ALBION (KATHERINE BOGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Orleans County Court (James P.
Punch, J.), rendered April 19, 2010. The judgment convicted
defendant, upon his plea of guilty, of rape in the third degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of rape in the third degree (Penal Law § 130.25 [2]),
defendant contends that County Court improperly considered prior
criminal charges that did not result in convictions when it imposed
sentence and thus that the sentence is illegal. Defendant’s valid
waiver of the right to appeal does “not encompass the right to
challenge the legality of the sentencing procedure on appeal” (People
v Nicholson, 237 AD2d 973, 974, lv denied 90 NY2d 908), nor is
preservation required to challenge the legality of a sentence (see
generally People v Samms, 95 NY2d 52, 56). Nevertheless, the record
does not support defendant’s contention.




Entered:    April 29, 2011                         Patricia L. Morgan
                                                   Clerk of the Court
