Opinion
No. 2012–2529 K CR.
04-20-2015
The PEOPLE of the State of New York, Respondent, v. Miguel ROSARIO, Appellant.
Opinion
ORDERED that the sentences are affirmed.
Defendant, while represented by counsel, pleaded guilty to two counts of endangering the welfare of a child (Penal Law § 260.10[1] ), stemming from allegations that he kissed the victim, a 14–year–old girl, on her mouth without her consent and then, after he was arrested, sent numerous texts of a sexual nature to the victim from the police station. In accordance with the terms of the plea agreement, defendant was sentenced to concurrent terms of three years' probation, with 30 days' incarceration as a condition of each term, to run concurrently with the sentences of probation (see Penal Law § 60.01[2][d] ). A final order of protection was also issued directing defendant to stay away from the victim. Defendant has since completed the incarceration portion of his sentences. On appeal, defendant contends that his sentences of probation were unduly harsh and that, to avoid his serving the remaining periods of probation, the sentences should be modified to two concurrent terms of conditional discharge.
As a general rule, a defendant who has been sentenced according to the terms of a bargained-for plea and sentencing agreement will not be heard to complain that the sentence was unduly harsh or excessive (see People v. Galvez, 72 AD3d 838 [2010] ; People v. Caguana, 69 AD3d 953 [2010] ; People v. Ubiles, 59 AD3d 572 [2009] ; People v. Grigg, 53 AD3d 629 [2008] ). Under the circumstances presented, we find no basis to deviate from that rule. In any event, the sentences did not constitute an abuse of sentencing discretion, nor should the sentences be modified in the interest of justice.
Accordingly, the sentences are affirmed.
PESCE, P.J., and ALIOTTA, J., concur.
WESTON, J., concurs in a separate memorandum.
WESTON, J., concurs in the following memorandum:
I concur with the majority that defendant cannot be heard to complain that his sentence was excessive since it was part of his negotiated plea agreement. I write separately only to recommend that in cases where, as here, a defendant freely, knowingly and voluntarily enters a guilty plea in exchange for a bargained-for sentence, there should be a corresponding waiver of a right to appeal. Without such a waiver, appellate courts are required to entertain countless appeals of negotiated sentences.
Courts have repeatedly upheld guilty pleas conditioned upon a waiver of a right to appeal (see People v. Lopez, 6 NY3d 248 [2006] ; People v. Seaberg, 74 N.Y.2d 1 [1989] ). Such waivers promote swift, final resolution of criminal cases, often enabling defendants to obtain a more favorable disposition while alleviating court congestion at both the trial and appellate levels. Appellate waivers serve the dual goals of fairness and finality by ensuring that a “carefully orchestrated bargain of an agreed-upon sentence will not be disturbed [on appeal] as a discretionary matter” (People v. Lopez, 6 NY3d at 256 [internal quotation marks omitted] ). Only issues that “involve a right of constitutional dimension going to the very heart of the process' “ will survive a waiver of a right to appeal (id. at 255, quoting People v. Hansen, 95 N.Y.2d 227, 230 [2000] ).
Here, had defendant waived his right to appeal at the time he entered his plea, he would have been foreclosed from challenging his sentence as excessive on appeal. After extensive colloquy between the court and counsel over the course of a day, defendant negotiated a favorable bargain whereby he knowingly and voluntarily pleaded guilty to endangering the welfare of a child in exchange for two concurrent 30–day jail terms and three years' probation. To permit defendant to seek appellate review of that bargain on the misguided belief that a term of probation is excessive is nothing more than a waste of precious judicial resources.