Opinion
325 KA 17–01595
03-23-2018
The PEOPLE of the State of New York, Respondent, v. Daniel PETRANGELO, Defendant–Appellant.
D.J. & J.A. CIRANDO, ESQS., SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR DEFENDANT–APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (VICTORIA M. WHITE OF COUNSEL), FOR RESPONDENT.
D.J. & J.A. CIRANDO, ESQS., SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR DEFENDANT–APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (VICTORIA M. WHITE OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., CARNI, NEMOYER, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of assault in the second degree ( Penal Law § 120.05[2] ). County Court imposed a split sentence of 90 days of local incarceration and a term of probation of unspecified length. Contrary to defendant's contention, the record establishes that he validly waived his right to appeal (see People v. Ripley, 94 A.D.3d 1554, 1554, 942 N.Y.S.2d 919 [4th Dept. 2012], lv denied 19 N.Y.3d 976, 950 N.Y.S.2d 359, 973 N.E.2d 769 [2012] ; People v. Wagoner, 6 A.D.3d 985, 986, 777 N.Y.S.2d 522 [3d Dept. 2004] ; see generally People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ), and we are thereby foreclosed from reaching his suppression claims (see People v. Sanders, 25 N.Y.3d 337, 342, 12 N.Y.S.3d 593, 34 N.E.3d 344 [2015] ). Defendant's challenge to the voluntariness of his plea is not preserved for our review, and the narrow exception to the preservation requirement does not apply (see People v. Leach, 26 N.Y.3d 1154, 1154, 28 N.Y.S.3d 355, 48 N.E.3d 497 [2016] ; People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ).
Although not raised by the parties, we note that the judgment must be modified by vacating the sentence and the matter must be remitted to County Court for resentencing because the court did not specify the length of the term of probation (see People v. Sacco, 294 A.D.2d 452, 453, 741 N.Y.S.2d 742 [2d Dept. 2002] ; see generally CPL 380.20 ; Penal Law §§ 60.01[2][d] ; 65.00 [3][a][i] ). Thus, defendant's challenge to his sentence is academic.
It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by vacating the sentence and as modified the judgment is affirmed, and the matter is remitted to Onondaga County Court for resentencing.