People v. Millazzo , 153 A.D.3d 1279 ( 2017 )

People v Millazzo (2017 NY Slip Op 06459)

People v Millazzo

2017 NY Slip Op 06459

Decided on September 13, 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 September 13, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
WILLIAM F. MASTRO, J.P.
RUTH C. BALKIN
SANDRA L. SGROI
COLLEEN D. DUFFY, JJ.

2015-05550

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

v

Michael Millazzo, appellant. (S.C.I. No. 2659/12) Lynn W. L. Fahey, New York, NY, for appellant.

Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, and Danielle S. Fenn of counsel; Lorrie A. Zinno on the brief), for respondent.

DECISION & ORDER

Appeal by the defendant from a resentence of the Supreme Court, Queens County (Lewis, J., at plea; Chin-Brandt, J., at resentence), imposed May 20, 2015, upon remittitur from this Court for resentencing (see People v Millazzo, 127 AD3d 1237), upon his convictions of attempted criminal possession of a weapon in the second degree, criminal possession of a weapon in the fourth degree (two counts), and unlawful possession of pistol ammunition, upon his plea of guilty.

ORDERED that the resentence is affirmed.

The defendant's purported waiver of his right to appeal was invalid (see People v Lopez, 6 NY3d 248, 257; People v Callahan, 80 NY2d 273, 283; People v Black, 144 AD3d 935, 935-936; People v Pacheco, 138 AD3d 1035, 1036; People v Jackson, 114 AD3d 807, 808; People v Pelaez, 100 AD3d 803, 803) and, thus, does not preclude review of the defendant's claim that the resentence was excessive. However, contrary to the defendant's contention, the resentence imposed was not excessive (see People v Suitte, 90 AD2d 80).

MASTRO, J.P., BALKIN, SGROI and DUFFY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court