People v Robert A. Mc Kitchen

People v McKitchen 2003 NY Slip Op 20295 [2 AD3d 1475] December 31, 2003 Appellate Division, Fourth Department As corrected through Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 25, 2004

The People of the State of New York, Respondent,
v
Robert A. McKitchen, Also Known as Robert McKithen, Appellant.

—Appeal from a judgment of Erie County Court (Drury, J.), entered October 31, 2001, convicting defendant upon his plea of guilty of criminal possession of stolen property in the fourth degree and unauthorized use of a vehicle in the third degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of criminal possession of stolen property in the fourth degree (Penal Law § 165.45 [5]) and unauthorized use of a vehicle in the third degree (§ 165.05 [1]). Defendant's waiver of the right to appeal was knowing, voluntary and intelligent (see People v Baxter, 302 AD2d 950, 951 [2003], lv denied 99 NY2d 652 [2003]), and that waiver encompasses defendant's contention with regard to the severity of the enhanced sentence (see People v Melendez, 291 AD2d 887, 888 [2002], lv denied 98 NY2d 639 [2002]). Defendant's remaining contention is not preserved for our review (see People v Harris, 289 AD2d 1068 [2001], lv denied 98 NY2d 637 [2002]), and we decline to exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). Present—Pigott, Jr., P.J., Wisner, Kehoe, Lawton and Hayes, JJ.