Opinion
366 KA 16–00585
05-04-2018
The PEOPLE of the State of New York, Respondent, v. Steven J. JOHNSON, Defendant–Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (CAITLIN M. CONNELLY OF COUNSEL), FOR DEFENDANT–APPELLANT. JOSEPH V. CARDONE, DISTRICT ATTORNEY, ALBION (KATHERINE BOGAN OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (CAITLIN M. CONNELLY OF COUNSEL), FOR DEFENDANT–APPELLANT.
JOSEPH V. CARDONE, DISTRICT ATTORNEY, ALBION (KATHERINE BOGAN OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., CARNI, DEJOSEPH, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of attempted criminal sale of a controlled substance in the third degree ( Penal Law §§ 110.00, 220.39[1] ). Even assuming, arguendo, that defendant's waiver of the right to appeal is invalid and thus does not preclude our review of his challenge to the severity of his sentence (see People v. Davis, 114 A.D.3d 1166, 1167, 979 N.Y.S.2d 903 [4th Dept. 2014], lv denied 23 N.Y.3d 1035, 993 N.Y.S.2d 249, 17 N.E.3d 504 [2014] ), we conclude that the sentence is not unduly harsh or severe.
As the People correctly concede, however, the certificate of conviction and uniform sentence and commitment must be amended because they incorrectly reflect that defendant was sentenced as a second felony offender when he was actually sentenced as a second felony drug offender (see People v. Holmes, 147 A.D.3d 1367, 1368, 45 N.Y.S.3d 751 [4th Dept. 2017], lv denied 29 N.Y.3d 998, 57 N.Y.S.3d 719, 80 N.E.3d 412 [2017] ).