Opinion
95 KA 15-01697
03-23-2018
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. LELAND JIRDON, DEFENDANT-APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (TIMOTHY P. MURPHY OF COUNSEL), FOR DEFENDANT-APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. LOWRY OF COUNSEL), FOR RESPONDENT.
PRESENT:
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (TIMOTHY P. MURPHY OF COUNSEL), FOR DEFENDANT-APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. LOWRY OF COUNSEL), FOR RESPONDENT.
Appeal from a resentence of the Supreme Court, Erie County (Sheila A. DiTullio, A.J.), rendered July 9, 2015. Defendant was resentenced to a determinate term of incarceration of five years followed by five years' postrelease supervision.
It is hereby ORDERED that the resentence so appealed from is unanimously affirmed.
Memorandum: Defendant was convicted, upon his plea of guilty, of robbery in the second degree (Penal Law § 160.10 [1]), and he now appeals from a resentence with respect to that conviction. Contrary to defendant's contention, the record establishes that he knowingly, voluntarily and intelligently waived the right to appeal (see People v Porterfield, 107 AD3d 1478, 1478 [4th Dept 2013], lv denied 21 NY3d 1076 [2013]; see generally People v Lopez, 6 NY3d 248, 256 [2006]).
Although defendant validly waived his right to appeal during the plea proceeding, the waiver does not preclude his challenge to the resentence under the circumstances of this case. As a condition of his plea, defendant agreed to waive his right to appeal the conviction and sentence in exchange for the minimum lawful sentence for a second violent felony offender (see Penal Law §§ 70.04 [3] [b]; 70.45 [2]). After it was determined that defendant did not qualify as a predicate felon, Supreme Court—contrary to the sentencing commitment to defendant at the time of the plea and waiver of the right to appeal—resentenced defendant to a sentence greater than the minimum lawful sentence (see §§ 70.02 [3] [b]; 70.45 [2] [f]). Where, as here, the sentencing conditions under which a defendant agrees to waive the right to appeal change following the waiver, the defendant is not precluded by that waiver from challenging the severity of a subsequent resentence (see People v Gray, 32 AD3d 1052, 1053 [3d Dept 2006], lv denied 7 NY3d 902 [2006]; People v Tausinger, 21 AD3d 1181, 1183 [3d Dept 2005]; see also People v Allen, 97 AD3d 1164, 1164 [4th Dept 2012], lv denied 19 NY3d 994 [2012]). Moreover, inasmuch as "defendant was not asked [during resentencing] if he further agreed to waive his right to pursue an appeal regarding the modified terms of his sentence, he is not foreclosed from requesting appellate review of . . . the severity of the imposed sentence" (People v Johnson, 14 NY3d 483, 487 [2010]). We also note that "defendant's release to parole supervision does not render his challenge moot because he remains under the control of the Parole Board until his sentence has terminated' " (People v Sebring, 111 AD3d 1346, 1347 [4th Dept 2013], lv denied 22 NY3d 1159 [2014]; see People v Rowell, 5 AD3d 1073, 1074 [4th Dept 2004], lv denied 2 NY3d 806 [2004]). We nevertheless conclude that defendant's sentence is not unduly harsh or severe.
Entered: March 23, 2018
Mark W. Bennett
Clerk of the Court