Opinion
792 KA 20-00761
11-17-2023
The PEOPLE of the State of New York, Respondent, v. James D. PASCALAR, Defendant-Appellant.
JULIE CIANCA, PUBLIC DEFENDER, ROCHESTER (TONYA PLANK OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
JULIE CIANCA, PUBLIC DEFENDER, ROCHESTER (TONYA PLANK OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CURRAN, MONTOUR, OGDEN, AND NOWAK, 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 endangering the welfare of a vulnerable elderly person or an incompetent or physically disabled person in the second degree ( Penal Law § 260.32 [4] ), identity theft in the first degree (§ 190.80 [1]), and criminal possession of a forged instrument in the second degree (§ 170.25). Even assuming, arguendo, that defendant's waiver of the right to appeal is invalid (see People v. Blackshear , 208 A.D.3d 1635, 1636, 174 N.Y.S.3d 657 [4th Dept. 2022], lv denied 39 N.Y.3d 961, 179 N.Y.S.3d 156, 200 N.E.3d 101 [2022] ; see generally 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 does not preclude our review of his challenge to the severity of his sentence (see People v. Alls , 187 A.D.3d 1515, 1515, 129 N.Y.S.3d 881 [4th Dept. 2020] ), we conclude that the sentence is not unduly harsh or severe.