Opinion
1280/19 KA 18-01034
02-05-2021
The PEOPLE of the State of New York, Respondent, v. Joshua D. BIASELLI, Defendant-Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SUSAN C. MINISTERO OF COUNSEL), FOR DEFENDANT-APPELLANT. JOSEPH V. CARDONE, DISTRICT ATTORNEY, ALBION (SUSAN M. HOWARD OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SUSAN C. MINISTERO OF COUNSEL), FOR DEFENDANT-APPELLANT.
JOSEPH V. CARDONE, DISTRICT ATTORNEY, ALBION (SUSAN M. HOWARD OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., CARNI, LINDLEY, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
Now, upon remittitur from the Court of Appeals,
It is hereby ORDERED that, upon remittitur from the Court of Appeals, the judgment so appealed from is unanimously affirmed.
Memorandum: This case is before us upon remittitur from the Court of Appeals ( People v. Bisono , 36 N.Y.3d 1013, 140 N.Y.S.3d 433, 164 N.E.3d 239 [2020], revg People v. Biaselli , 179 A.D.3d 1533, 119 N.Y.S.3d 345 [4th Dept. 2020] ). We previously affirmed the judgment convicting defendant upon his plea of guilty of driving while intoxicated, as a class E felony ( Vehicle and Traffic Law §§ 1192 [3] ; 1193 [1] [c] [i] [A]), concluding that defendant's waiver of the right to appeal was knowingly, voluntarily, and intelligently entered and that the waiver encompassed his challenge to the severity of the sentence ( Biaselli , 179 A.D.3d at 1533-1534, 119 N.Y.S.3d 345 ). We further concluded that defendant's contention that County Court did not adhere to its promise not to impose the maximum sentence survived the waiver but was unpreserved and without merit in any event ( id. at 1534, 119 N.Y.S.3d 345 ). Lastly, we concluded that defendant's remaining contentions, to the extent they were not encompassed by the waiver of the right to appeal, were not preserved for our review ( id. ). The Court of Appeals reversed, stating that the waiver was invalid and unenforceable pursuant to its analysis in People v. Thomas , 34 N.Y.3d 545, 122 N.Y.S.3d 226, 144 N.E.3d 970 (2019), cert denied ––– U.S. ––––, 140 S. Ct. 2634, 206 L.Ed.2d 512 (2020) (see Bisono , 36 N.Y.3d at 1017, 140 N.Y.S.3d 433, 164 N.E.3d 239). The Court of Appeals remitted the matter to this Court "for consideration of issues raised but not decided" due to the enforcement of defendant's waiver of the right to appeal ( id. at 1018, 140 N.Y.S.3d 433, 164 N.E.3d 239 ).
After review of defendant's contentions upon remittitur, we conclude that the sentence is not unduly harsh or severe. We further conclude that defendant's remaining contentions are not preserved for our review (see CPL 470.05 [2] ; see generally People v. Howland , 130 A.D.3d 1105, 1106, 13 N.Y.S.3d 613 [3d Dept. 2015], lv denied 26 N.Y.3d 1089, 23 N.Y.S.3d 646, 44 N.E.3d 944 [2015] ), and we decline to exercise our power to review them as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c] ).