
    The People of the State of New York, Respondent, v Rafael D’Avila, Appellant.
    [800 NYS2d 515]
   Appeal by the defendant from a judgment of the Supreme Court, Kings County (Walsh, J.), rendered August 3, 2004, convicting him of burglary in the third degree, upon his plea of guilty, and imposing sentence.

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 [2004]). 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 [2]).

The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]). Prudenti, P.J., Schmidt, Santucci, Luciano and Spolzino, JJ., concur.  