Opinion
2018–05325 2018–05326 Ind.No. 4798/17, S.C.I. No. 4801/17
09-16-2020
The PEOPLE, etc., Respondent, v. Anthony CRUZ, Appellant.
Janet E. Sabel, New York, N.Y. (Hannah B. Gladstein of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Rhea A. Grob, and Daniel Rosenblum of counsel), for respondent.
Janet E. Sabel, New York, N.Y. (Hannah B. Gladstein of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Rhea A. Grob, and Daniel Rosenblum of counsel), for respondent.
MARK C. DILLON, J.P., LEONARD B. AUSTIN, COLLEEN D. DUFFY, BETSY BARROS, JJ.
DECISION & ORDER Appeals by the defendant from two judgments of the Supreme Court, Kings County (William Miller, J.), both rendered January 17, 2018, convicting him of burglary in the third degree (two counts) under Indictment No. 4798/17, and burglary in the third degree under Superior Court Information No. 4801/17, upon his pleas of guilty, and imposing sentences.
ORDERED that the judgments are affirmed.
The defendant pleaded guilty to two counts of burglary in the third degree in satisfaction of Indictment No. 4798/17. He subsequently waived his right to be prosecuted by an indictment and agreed to be prosecuted under a superior court information (hereinafter SCI) with respect to a third count of burglary in the third degree, then pleaded guilty to the sole count of the SCI. The defendant was sentenced, and now appeals.
The defendant's contention that the written waiver of indictment failed to comply with Criminal Procedure Law § 195.20, in that it does not contain the "approximate time" of the offense to be charged in the SCI, is forfeited by his plea of guilty (see People v. Thomas, 34 N.Y.3d 545, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; People v. Hodge, 179 A.D.3d 1461, 1461, 118 N.Y.S.3d 328 ; People v. Elric YY., 179 A.D.3d 1304, 1305–1306, 117 N.Y.S.3d 735 ).
The defendant failed to object to the presentence investigation report (hereinafter the PSR) before sentencing, and his argument that the PSR is so lacking that the sentencing judge was unable to effectively exercise his discretion, requiring the vacatur of the sentences and remittal for resentencing, is thus unpreserved for appellate review (see People v. Serrano, 158 A.D.3d 467, 468, 70 N.Y.S.3d 494 ; People v. Houston P.B., 157 A.D.3d 712, 713, 67 N.Y.S.3d 56 ; People v. Davila, 238 A.D.2d 625, 626, 655 N.Y.S.2d 698 ), and we decline to reach it in the interest of justice. The record demonstrates that the defendant knowingly, intelligently, and voluntarily waived his right to appeal (see People v. Williams, 180 A.D.3d 814, 814, 115 N.Y.S.3d 897 ; People v. Jie Chen, 178 A.D.3d 1070, 1070, 112 N.Y.S.3d 544 ; People v. Brunache, 176 A.D.3d 730, 730, 107 N.Y.S.3d 675 ; People v. Davis, 174 A.D.3d 735, 735, 102 N.Y.S.3d 470 ; People v. Spitzer, 163 A.D.3d 591, 592, 76 N.Y.S.3d 410 ). The defendant's valid waiver of his right to appeal precludes appellate review of his contention that the sentences imposed were excessive (see People v. Lopez, 6 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ).
DILLON, J.P., AUSTIN, DUFFY and BARROS, JJ., concur.