PEOPLE v. D'AVILA

Ordered that the judgment is affirmed.

The defendant's purported waiver of the right to appeal was not valid because it was based on an incorrect statement of law ( cf. People v. Brown, 13 AD3d 548, 549). However, the defendant failed to preserve for appellate review his contention that the sentencing court failed to exercise any discretion in imposing sentence ( see CPL 470.05).

The sentence imposed was not excessive ( see People v. Suitte, 90 AD2d 80).