Robert C. Mitchell, Riverhead, N.Y. (Alfred J. Cicale of counsel), for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Edward A. Bannan of counsel), for respondent.
Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Suffolk County (Cohen, J.), imposed September 28, 2011.
ORDERED that the sentence is affirmed.
The defendant's purported waiver of his right to appeal was invalid ( see People v. Bradshaw, 18 N.Y.3d 257, 267, 938 N.Y.S.2d 254, 961 N.E.2d 645; People v. Lopez, 6 N.Y.3d 248, 256–257, 811 N.Y.S.2d 623, 844 N.E.2d 1145) and, thus, does not preclude review of his claim that his sentence was excessive. However, the sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).
There is no relief that this Court can afford the defendant in connection with his request for a so-called “violent felony override” ( see People v. Lynch, 121 A.D.3d 717, 993 N.Y.S.2d 163). While the defendant's conviction of vehicular manslaughter in the first degree (Penal Law § 125.13) appears to render him ineligible for the temporary release program at issue ( see 7 NYCRR 1900.4[c][2][ii] ), “[i]t is for [the Department of Corrections and Community Supervision], and not the court or the district attorney, to determine whether conviction under a particular section and subdivision disqualifies an inmate from eligibility” ( People v. Lynch, 121 A.D.3d at 718, 993 N.Y.S.2d 163; see generally 7 NYCRR 1900.4).
ENG, P.J., BALKIN, DICKERSON, CHAMBERS and HINDS–RADIX, JJ., concur.