Opinion
516 KA 13-01758
06-12-2015
The PEOPLE of the State of New York, Respondent, v. Steven C. McKNIGHT, Jr., also known as Steven C. McNight, Jr., Defendant–Appellant. (Appeal No. 1.).
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Caitlin M. Connelly of Counsel), for Defendant–Appellant. Lawrence Friedman, District Attorney, Batavia (William G. Zickl of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Caitlin M. Connelly of Counsel), for Defendant–Appellant.
Lawrence Friedman, District Attorney, Batavia (William G. Zickl of Counsel), for Respondent.
PRESENT: CENTRA, J.P., CARNI, SCONIERS, VALENTINO, and WHALEN, JJ.
Opinion
MEMORANDUM:In appeal No. 1, defendant appeals from a judgment convicting him upon his plea of guilty of attempted burglary in the second degree (Penal Law §§ 110.00, 140.25[2] ) arising from an incident that occurred on December 14, 2011 and, in appeal No. 2, he appeals from a judgment convicting him upon his plea of guilty of attempted burglary in the second degree (§§ 110.00, 140.25[2] ) arising from a similar incident that occurred on December 15, 2011. The convictions stem from defendant's involvement in a burglary ring operated principally by his neighbor. Defendant contends in both appeals that he was denied due process at sentencing because County Court relied on materially untrue information pertaining to his criminal history. We agree, and we therefore modify the judgment in each appeal by vacating the sentence imposed and remit the matter to County Court for resentencing before a different judge.
As a preliminary matter, we note that defendant did not waive his right to appeal his conviction in appeal No. 1 and, to that extent, there is no impediment to addressing his contention in that appeal. In contrast, we further note that defendant waived his right to appeal in appeal No. 2, and we conclude that such waiver was voluntarily, knowingly, and intelligently entered (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Brown, 122 A.D.3d 133, 136–137, 992 N.Y.S.2d 297, lv. denied 24 N.Y.3d 1042, 998 N.Y.S.2d 312, 23 N.E.3d 155 ). We nevertheless address defendant's contention in appeal No. 2 because the waiver of the right to appeal therein does not encompass his challenge to the court's reliance on improper information at sentencing (see People v. Gibbons, 101 A.D.3d 1615, 1616, 956 N.Y.S.2d 720 ; People v. Dimmick, 53 A.D.3d 1113, 1113, 862 N.Y.S.2d 687, lv. denied 11 N.Y.3d 831, 868 N.Y.S.2d 606, 897 N.E.2d 1090 ; see also People v. Brown, 83 A.D.3d 1577, 1577, 921 N.Y.S.2d 586, lv. denied 18 N.Y.3d 992, 945 N.Y.S.2d 647, 968 N.E.2d 1003 ).
Although defendant's contention in both appeals is unpreserved for our review, we exercise our power to address it as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ), and we conclude that the court erred in sentencing defendant on the basis of “materially untrue assumptions or misinformation” (People v. Naranjo, 89 N.Y.2d 1047, 1049, 659 N.Y.S.2d 826, 681 N.E.2d 1272 [internal quotation marks omitted]; see People v. Francis, 100 A.D.3d 1017, 1017, 954 N.Y.S.2d 626 ; People v. Baker, 87 A.D.3d 1313, 1315, 930 N.Y.S.2d 167, lv. denied 18 N.Y.3d 857, 938 N.Y.S.2d 864, 962 N.E.2d 289 ; People v. Bratcher, 291 A.D.2d 878, 879, 737 N.Y.S.2d 451, lv. denied 98 N.Y.2d 673, 746 N.Y.S.2d 462, 774 N.E.2d 227 ; see generally People v. Outley, 80 N.Y.2d 702, 712, 594 N.Y.S.2d 683, 610 N.E.2d 356 ). Here, the court characterized defendant as having been involved in “more than 40 residential burglaries” and “all the tens of burglaries,” but those statements are unsupported by the record and therefore constitute improper speculation (see Baker, 87 A.D.3d at 1315, 930 N.Y.S.2d 167 ; People v. Wilson, 303 A.D.2d 773, 773, 757 N.Y.S.2d 446, lv. denied 100 N.Y.2d 589, 764 N.Y.S.2d 401, 796 N.E.2d 493 ). Inasmuch as we conclude that “the court sentenced ... defendant, in part, ‘on the basis of materially untrue assumptions or misinformation,’ ... defendant was denied due process, and must be resentenced” before a different judge (Francis, 100 A.D.3d at 1017, 954 N.Y.S.2d 626 ; see generally Naranjo, 89 N.Y.2d at 1049, 659 N.Y.S.2d 826, 681 N.E.2d 1272 ). In light of our determination, we need not address defendant's remaining contentions.
It is hereby ORDERED that the judgment so appealed from is unanimously modified as a matter of discretion in the interest of justice and on the law by vacating the sentence imposed, and as modified the judgment is affirmed, and the matter is remitted to Genesee County Court for resentencing.