
    The People of the State of New York, Respondent, v David Graczyk, Appellant.
    [621 NYS2d 1005]
   —Judgment unanimously affirmed. Memorandum: The contention of defendant that his sentence is unduly harsh or excessive does not survive the voluntary, knowing and intelligent waiver of his right to appeal (see, People v Allen, 82 NY2d 761; People v Saunders, 190 AD2d 1092, lv denied 81 NY2d 1019).

The further contention of defendant that his sentence should be modified because he was under the impression that he would receive a maximum term of 25 to 50 years imprisonment is without merit. The record establishes that the court repeatedly refused to commit to a promised sentence. Moreover, defendant’s sentence will be reduced by operation of law to the statutory maximum (see, Penal Law § 70.30 [1] [c] [iii]). The statutory calculation will be made by the Department of Correctional Services (see, People v Beaufort-Cutner, 190 AD2d 992, 994, lv denied 81 NY2d 1011; People v Bachman, 158 AD2d 930, lv denied 75 NY2d 963).

Defendant’s remaining contention is without merit. (Appeal from Judgment of Supreme Court, Erie County, Rossetti, J.— Sodomy, 1st Degree.) Present—Denman, P. J., Green, Balio, Callahan and Boehm, JJ.  