People v. Rosato

Appeal by the defendant from a judgment of the County Court, Westchester County (Zambelli, J.), rendered July 29, 2005, convicting him of murder in the second degree, upon his plea of guilty, and imposing sentence. Ordered that the judgment is affirmed. The defendant’s purported waiver of his right to appeal was ineffective because it was based on an incorrect statement of law (see People v Lopez, 6 NY3d 248, 256 [2006]; People v Rodriguez, 32 AD3d 481, 482 [2006]; People v D’Avila, 21 AD3d 905 [2005]; People v Matthews, 21 AD3d 499, 500 [2005]) and, thus, does not preclude the defendant’s challenge to his sentence as excessive. 742 However, the sentence imposed, was not excessive (see People v Suitte, 90 AD2d 80, 85 [1982]) and, in any event, the defendant has no basis to complain because the sentence was part of the negotiated plea (see People v Rodriguez, supra at 482; People v Demosthene, 21 AD3d 384, 385 [2005]; People v Fanelli, 8 AD3d 296 [2004]). Mastro, J.E, Spolzino, Santucci and Lifson, JJ., concur.