People v. Hatcher ( 2018 )

People v Hatcher (2018 NY Slip Op 06560)

People v Hatcher

2018 NY Slip Op 06560

Decided on October 3, 2018

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 3, 2018 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
ALAN D. SCHEINKMAN, P.J.
REINALDO E. RIVERA
LEONARD B. AUSTIN
JEFFREY A. COHEN
BETSY BARROS, JJ.

2016-08803
(Ind. No. 776/15)

[*1]The People of the State of New York, respondent,

v

Jonte L. Hatcher, appellant.

Laurette D. Mulry, Riverhead, NY (Alfred J. Cicale of counsel), for appellant.

Timothy D. Sini, District Attorney, Riverhead, NY (Timothy P. Finnerty of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant, as limited by his motion, from a resentence of the Supreme Court, Suffolk County (Richard Ambro, J.), imposed June 29, 2016, on the ground that the resentence was excessive.

ORDERED that the resentence is affirmed.

Under the circumstances, the defendant's valid waiver of his right to appeal during the plea proceeding (see People v Bradshaw, 18 NY3d 257, 264-267; People v Lopez, 6 NY3d 248, 255; People v Dietz, 152 AD3d 717; People v Oldham, 146 AD3d 985) does not preclude appellate review of his contention that the resentence imposed was excessive inasmuch as he entered the plea under conditions that changed following the waiver (see People v Tausinger, 21 AD3d 1181, 1183; see also People v Johnson, 14 NY3d 483, 487). Nevertheless, the record reveals that the defendant received a more favorable term of imprisonment upon resentencing and that the resentence imposed was not excessive (see People v Suitte, 90 AD2d 80).

SCHEINKMAN, P.J., RIVERA, AUSTIN, COHEN and BARROS, JJ., concur.

ENTER: Aprilanne Agostino Clerk of the Court