Opinion
835 KA 20-01302
11-10-2022
The PEOPLE of the State of New York, Respondent, v. Sean SHAFFER, Defendant-Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (DEBORAH K. JESSEY OF COUNSEL), FOR DEFENDANT-APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DANIEL J. PUNCH OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (DEBORAH K. JESSEY OF COUNSEL), FOR DEFENDANT-APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DANIEL J. PUNCH OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., LINDLEY, CURRAN, BANNISTER, AND MONTOUR, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of criminal obstruction of breathing or blood circulation ( Penal Law § 121.11 [a] ) and endangering the welfare of a child (§ 260.10 [1]), defendant contends that his waiver of the right to appeal is invalid and that his sentence is unduly harsh and severe. Even assuming, arguendo, that defendant's waiver of the right to appeal is invalid and thus does not preclude our review of his challenge to the severity of the sentence (see People v. Seay , 201 A.D.3d 1361, 1361-1362, 158 N.Y.S.3d 697 [4th Dept. 2022] ), we conclude that the sentence is not unduly harsh or severe.
We agree with defendant, however, that the uniform sentence and commitment sheet incorrectly states that defendant was sentenced for a felony when in fact he was sentenced for two class A misdemeanors, and fails to reflect that he was sentenced to a split sentence that included three years’ probation. Thus, the uniform sentence and commitment sheet must be amended to correct those errors (see generally People v. Range , 199 A.D.3d 1356, 1358, 154 N.Y.S.3d 540 [4th Dept. 2021], lv denied 37 N.Y.3d 1164, 160 N.Y.S.3d 711, 181 N.E.3d 1139 [2022] ; People v. Lewis , 185 A.D.3d 1542, 1543-1544, 125 N.Y.S.3d 912 [4th Dept. 2020], lv denied 35 N.Y.3d 1114, 133 N.Y.S.3d 531, 158 N.E.3d 548 [2020] ).