Opinion
849 KA 17-00835
11-10-2022
The PEOPLE of the State of New York, Respondent, v. Gregory RAMOS, Defendant-Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (JANE I. YOON OF COUNSEL), FOR DEFENDANT-APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (JANE I. YOON OF COUNSEL), FOR DEFENDANT-APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, NEMOYER, AND BANNISTER, 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 guilty plea of strangulation in the second degree ( Penal Law § 121.12 ). We previously held the case, reserved decision, and remitted the matter to Supreme Court to afford defendant a reasonable opportunity to present contentions in support of his motion to withdraw his plea ( People v. Ramos , 184 A.D.3d 1203, 1204, 125 N.Y.S.3d 787 [4th Dept. 2020] ). Upon remittal, the court again denied defendant's motion to withdraw his plea, but defendant now withdraws his contention of error with respect to the court's denial of that motion.
We reject defendant's contention that the court erred in failing to apprehend the extent of its discretion in imposing the period of postrelease supervision. We conclude that the court's statements at the plea proceeding regarding the imposition of a three-year period of postrelease supervision "do[ ] not, without more, indicate that the court erroneously believed that it lacked discretion to impose a shorter period" ( People v. Porter , 9 A.D.3d 887, 887, 779 N.Y.S.2d 684 [4th Dept. 2004], lv denied 3 N.Y.3d 710, 785 N.Y.S.2d 38, 818 N.E.2d 680 [2004] ).
Even assuming, arguendo, that defendant is correct that his waiver of the right to appeal is invalid, and thus does not preclude our review of his challenge to the severity of his sentence (see People v. Seay , 201 A.D.3d 1361, 1361-1362, 158 N.Y.S.3d 697 [4th Dept. 2022] ), we nevertheless conclude that the sentence is not unduly harsh or severe. However, as defendant contends and the People correctly concede, to the extent that statements made by the court at the proceeding upon remittal were an attempt by the court to modify defendant's sentence to run the sentence consecutively to a sentence on defendant's federal conviction, the court was without authority to do so (see CPL 430.10 ; People v. Richardson , 100 N.Y.2d 847, 853, 767 N.Y.S.2d 384, 799 N.E.2d 607 [2003] ; Matter of Budelmann v. Leone , 48 A.D.3d 1206, 1207, 851 N.Y.S.2d 755 [4th Dept. 2008] ).
Defendant's remaining contention concerning the order of protection in favor of his children extends beyond the scope of the remittal and was not raised by defendant prior to remittal (see People v. Pressley , 170 A.D.3d 1645, 1645, 94 N.Y.S.3d 917 [4th Dept. 2019], lv denied 33 N.Y.3d 1072, 105 N.Y.S.3d 17, 129 N.E.3d 337 [2019] ; People v. Butler , 75 A.D.3d 1105, 1105, 903 N.Y.S.2d 763 [4th Dept. 2010], lv denied 15 N.Y.3d 919, 913 N.Y.S.2d 646, 939 N.E.2d 812 [2010] ). Even assuming, arguendo, that the contention is properly before us, we would conclude that it is without merit.