Opinion
302 KA 20-01438
04-22-2022
The PEOPLE of the State of New York, Respondent, v. Joseph MONTGOMERY, Defendant-Appellant. (Appeal No. 1.)
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (ERIC SUN OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KAITLYN M. GUPTILL OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (ERIC SUN OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KAITLYN M. GUPTILL OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, CURRAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him, upon his plea of guilty, of criminal possession of a weapon in the second degree ( Penal Law § 265.03 [3] ) and, in appeal No. 2, he appeals from a judgment convicting him, upon his plea of guilty, of assault in the second degree (§ 120.05 [7]). In both appeals, defendant contends that his waivers of the right to appeal are invalid and that the sentences are unduly harsh and severe. Even assuming, arguendo, that defendant's waivers of the right to appeal from the judgments are invalid (see People v. Bisono , 36 N.Y.3d 1013, 1017-1018, 140 N.Y.S.3d 433, 164 N.E.3d 239 [2020] ; People v. Thomas , 34 N.Y.3d 545, 565-566, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied ––– U.S. ––––, 140 S. Ct. 2634, 206 L.Ed.2d 512 [2020] ) and thus do not preclude our review of his challenge to the severity of his sentences (see People v. Viehdeffer , 189 A.D.3d 2143, 2144, 134 N.Y.S.3d 906 [4th Dept. 2020] ; People v. Love , 181 A.D.3d 1193, 1193, 118 N.Y.S.3d 475 [4th Dept. 2020] ), we conclude in each appeal that the sentence is not unduly harsh or severe.