People v. Janish ( 2011 )

Defendant does not dispute that his waiver of his right to appeal was knowing, intelligent, and voluntary. Although he “attempt [s] to avoid the effect of his waiver ... by invoking the exception ... for challenges to the legality of the sentence” (People v Callahan, 80 NY2d 273, 280-281 [1992]), we look at “the actual gist of [his appellate] claim,” not “the label [he] assign[s] to” it (id. at 281). As in Callahan, “it is apparent that his challenge is addressed not to the legality of the sentence . . . Rather, defendant’s appellate claim [i]s addressed merely to the adequacy of the procedures the court used to arrive at its sentencing determination” (id.). Therefore, his current claims are waived (see id.; see also People v Chamberlain, 35 AD3d 961, 962 [2006], lv denied 8 NY3d 920 [2007]; People v Williams, 290 AD2d 590, 590-591 [2002]).

Furthermore, regardless of the waiver, defendant’s claims are also unpreserved, and we decline to review them in the interest of justice. As an alternative holding, we also reject them on the merits. Concur — Gonzalez, EJ., Mazzarelli, Andrias, Sweeny and Román, JJ.