People v. Fusco ( 2017 )

People v Fusco (2017 NY Slip Op 02677)

People v Fusco

2017 NY Slip Op 02677

Decided on April 5, 2017

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 April 5, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
WILLIAM F. MASTRO, J.P.
CHERYL E. CHAMBERS
ROBERT J. MILLER
JOSEPH J. MALTESE, JJ.

2016-03493
(Ind. No. 1964/13)

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

v

Joseph Fusco, appellant.

Mark M. Baker, New York, NY, for appellant.

Madeline Singas, District Attorney, Mineola, NY (Yael V. Levy and W. Thomas Hughes of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Delligatti, J.), rendered April 15, 2016, convicting him of attempted criminal sexual act in the first degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

Prior to the imposition of sentence upon the defendant's conviction of attempted criminal sexual act in the first degree, the defendant moved to withdraw his plea of guilty to that charge. Contrary to the defendant's contention, the Supreme Court did not improvidently exercise its discretion in denying his motion. The record establishes that the defendant's plea of guilty was " entered voluntarily, knowingly and intelligently'" (People v Haffiz, 19 NY3d 883, 884, quoting People v Fiumefreddo, 82 NY2d 536, 543; see People v Grant, 61 AD3d 177, 182; People v Pierre, 8 AD3d 904, 905).

The defendant's purported waiver of his right to appeal was invalid (see People v Bradshaw, 18 NY3d 257, 264-265; People v Lopez, 6 NY3d 248, 256; People v Mack, 142 AD3d 1185, 1185; People v Flores, 139 AD3d 753, 753) and, thus, does not preclude review of his excessive sentence claim. However, the sentence imposed was not excessive (see People v Suitte, 90 AD2d 80).

MASTRO, J.P., CHAMBERS, MILLER and MALTESE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court