Opinion
695 KA 19-01915
09-30-2022
The PEOPLE of the State of New York, Respondent, v. Kyle LOVINES, Defendant-Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (DEBORAH K. JESSEY OF COUNSEL), FOR DEFENDANT-APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MINDY F. VANLEUVAN OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (DEBORAH K. JESSEY OF COUNSEL), FOR DEFENDANT-APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MINDY F. VANLEUVAN OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, NEMOYER, CURRAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of manslaughter in the first degree ( Penal Law § 125.20 [1] ), defendant contends that his waiver of the right to appeal is invalid and that the sentence imposed is unduly harsh and severe. Even assuming, arguendo, that defendant's waiver of the right to appeal is invalid and therefore does not preclude our review of his challenge to the severity of his sentence (see People v. Hoffman , 191 A.D.3d 1262, 1263, 137 N.Y.S.3d 784 [4th Dept. 2021], lv denied 36 N.Y.3d 1097, 144 N.Y.S.3d 135, 167 N.E.3d 1270 [2021] ; see generally People v. Thomas , 34 N.Y.3d 545, 559, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied ––– US ––––, 140 S.Ct. 2634, 206 L.Ed.2d 512 [2020] ), we conclude that the sentence is not unduly harsh or severe. The record belies defendant's further contention that County Court failed to give sufficient consideration to the psychiatric report prepared on his behalf for sentencing purposes. We agree with defendant, however, that the presentence report has not been redacted as the court ordered during sentencing, and therefore all copies of it must be redacted to correct that oversight (see People v. Bubis , 204 A.D.3d 1492, 1495, 167 N.Y.S.3d 283 [4th Dept. 2022], lv denied 38 N.Y.3d 1149, 174 N.Y.S.3d 43, 194 N.E.3d 750 [Aug. 29, 2022] ; see generally People v. Washington , 170 A.D.3d 1608, 1609-1610, 95 N.Y.S.3d 707 [4th Dept. 2019], lv denied 33 N.Y.3d 1036, 102 N.Y.S.3d 496, 126 N.E.3d 146 [2019] ).