People v. Malary ( 2023 )

People v Malary (2023 NY Slip Op 00676)

People v Malary

2023 NY Slip Op 00676

Decided on February 8, 2023

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 February 8, 2023 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
VALERIE BRATHWAITE NELSON, J.P.
REINALDO E. RIVERA
JOSEPH J. MALTESE
LARA J. GENOVESI, JJ.

2020-06347
(Ind. No. 788/16)

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

v

Dante Malary, appellant.

Patricia Pazner, New York, NY (David Fitzmaurice of counsel), for appellant.

Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Morgan J. Dennehy of counsel; Darci Siegel on the memorandum), for respondent.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Ruth Shillingford, J.), rendered June 17, 2019, convicting him of manslaughter in the first degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the defendant's contention, the record demonstrates that he knowingly, voluntarily, and intelligently waived his right to appeal (see People v Sanders, 25 NY3d 337, 341-342; People v Lopez, 6 NY3d 248, 256-257; People v Williams, 203 AD3d 850, 851). The defendant's valid waiver of his right to appeal precludes appellate review of his contentions that the sentence imposed was excessive (see People v Lopez, 6 NY3d 248; People v Batista, 167 AD3d 69, 75) and that the mandatory surcharge, DNA databank fee, and crime victim assistance fee should be vacated pursuant to CPL 420.35(2-a) (see People v Martinez, 210 AD3d 1008; People v Montanez, 203 AD3d 755).

BRATHWAITE NELSON, J.P., RIVERA, MALTESE and GENOVESI, JJ., concur.

ENTER:

Maria T. Fasulo

Clerk of the Court