Opinion
6630 Ind. 3191/13
05-22-2018
The PEOPLE of the State of New York, Respondent, v. Sean SMITH, Defendant–Appellant.
Seymour W. James, Jr., The Legal Aid Society, New York (Eve Kessler of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Patrick J. Hynes of counsel), respondent.
Seymour W. James, Jr., The Legal Aid Society, New York (Eve Kessler of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Patrick J. Hynes of counsel), respondent.
Sweeny, J.P., Webber, Gesmer, Singh, Moulton, JJ.
Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered February 5, 2014, convicting defendant, upon his plea of guilty, of two counts of burglary in the third degree, and sentencing him, as a second felony offender, to an aggregate term of 5 to 10 years, unanimously affirmed.
Defendant made a valid waiver of his right to appeal. The court's explanation of the waiver was nearly identical to the colloquy that was upheld by the Court of Appeals in People v. Bryant , 28 N.Y.3d 1094, 45 N.Y.S.3d 335, 68 N.E.3d 60 (2016). Defendant also signed a detailed written waiver, which clarified that he could not challenge his sentence on appeal as excessive. The waiver forecloses review of his claim relating to presentencing procedure ( People v. Davis, 145 A.D.3d 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 his excessive sentence claim.
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 negotiated sentence was improperly based on a presentence report for which he was not interviewed, and we decline to review it in the interest of justice. As an alternative holding, we find it unavailing. We have repeatedly rejected claims similar to defendant's procedural and substantive arguments (see e.g. People v. Serrano, 158 A.D.3d 467, 468, 70 N.Y.S.3d 494 [1st Dept. 2018] ).