People v. Cherry

People v Cherry (2014 NY Slip Op 07437)

People v Cherry

2014 NY Slip Op 07437

Decided on October 30, 2014

Appellate Division, First 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 30, 2014
Mazzarelli, J.P., Acosta, Saxe, Richter, Clark, JJ.

262N/07 13363A 5385N/09 13363

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

v

Jean Cherry, Defendant-Appellant.

Steven Banks, The Legal Aid Society, New York (Adrienne M. Gantt of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Yuval Simchi-Levi of counsel), for respondent.

Judgments, Supreme Court, New York County (Ellen Coin, J.), rendered on December 14, 2011, convicting defendant, upon his pleas of guilty, of criminal sale of a controlled substance in the fourth degree and bail jumping in the second degree, and sentencing him to consecutive terms of one year and one to three years, unanimously affirmed.

Defendant made a valid waiver of his right to appeal (see People v Lopez, 6 NY3d 248 [2006]). In explaining the waiver, the court separated the right to appeal from the rights automatically forfeited as the result of a guilty plea, and expressly stated that a defendant does not ordinarily give up the right to appeal by pleading guilty. It then explained that, in exchange for the negotiated plea and sentence, defendant was additionally agreeing to waive his right to appeal. Defendant acknowledged that he understood and also executed a written waiver. This waiver forecloses defendant's claims that the court failed to exercise its sentencing discretion, and that the sentence was excessive.

Regardless of whether defendant made a valid waiver of his right to appeal, we perceive no basis for remanding for resentencing (see e.g. People v Diaz, 304 AD2d 468 [1st Dept 2003], lv denied 100 NY2d 561 [2003]) or reducing the sentence.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 30, 2014

CLERK