Opinion
05-09-2017
The PEOPLE of the State of New York, Respondent, v. Andre ROSA, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Benjamin Wiener of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Lee M. Pollack of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Benjamin Wiener of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Lee M. Pollack of counsel), for respondent.
ACOSTA, J.P., RENWICK, MAZZARELLI, GISCHE, GESMER, JJ.
Judgment, Supreme Court, New York County (Edward J.
McLaughlin, J.), rendered February 17, 2015, convicting defendant, upon his plea of guilty, of attempted murder in the second degree and criminal possession of a weapon in the second degree, and sentencing him to concurrent terms of 10 years, unanimously affirmed.
Regardless of the validity of defendant's waiver of the right to appeal, we perceive no basis for reducing the sentence, or remanding for resentencing. Defendant did not preserve his claim that his sentence was improperly based on a presentence report for which he was not interviewed (see People v. Pinkston, 138 A.D.3d 431, 28 N.Y.S.3d 688 [1st Dept.2016], lv. denied 27 N.Y.3d 1137, 39 N.Y.S.3d 119, 61 N.E.3d 518 [2016] ), and we decline to review it in the interest of justice. As an alternative holding, we find that defendant could not have been prejudiced by any deficiency in the report. "Defendant received the precise sentence he bargained for" (People v. Davis, 145 A.D.3d 623, 623, 42 N.Y.S.3d 823 [1st Dept.2016], lv. denied 28 N.Y.3d 1183, 52 N.Y.S.3d 709, 75 N.E.3d 101 [2017] ), and "had he wished to be interviewed by the Probation Department, he could have called the court's attention to the fact that he had not been produced for such an interview" (Pinkston, 138 A.D.3d at 432, 28 N.Y.S.3d 688 ). Moreover, there is no indication that defendant was inclined to ask the court to exercise its discretion to impose a more lenient sentence than the one the parties agreed upon, a request that, "if successful, ran the risk of undoing the plea agreement pursuant to (People v. Farrar, 52 N.Y.2d 302, 307–308, 437 N.Y.S.2d 961, 419 N.E.2d 864 [1981] )" (People v. Vaughn, 4 A.D.3d 139, 139, 771 N.Y.S.2d 348 [2004], lv. denied 3 N.Y.3d 649, 782 N.Y.S.2d 421, 816 N.E.2d 211 [2004] ; see also People v. Guerrero, 27 A.D.3d 386, 387, 811 N.Y.S.2d 404 [1st Dept.2006], lv. denied 7 N.Y.3d 756, 819 N.Y.S.2d 882, 853 N.E.2d 253 [2006] ). We note that in both ( People v. Harleston, 139 A.D.3d 412, 31 N.Y.S.3d 41 [1st Dept.2016], lv. denied 28 N.Y.3d 971, 43 N.Y.S.3d 258, 66 N.E.3d 4 [2016] ) and ( People v. Breaux, 24 A.D.3d 261, 808 N.Y.S.2d 177 [1st Dept.2005], lv. denied 6 N.Y.3d 809, 812 N.Y.S.2d 449, 845 N.E.2d 1280 [2006] ), the error was preserved for review as a question of law, and the error was prejudicial because there was no negotiated sentence.