Opinion
2020–03968 Ind. No. 19–00191
11-10-2021
The PEOPLE, etc., respondent, v. Justin WHITE, appellant.
Alex Smith, Middletown, NY, for appellant. David M. Hoovler, District Attorney, Middletown, NY (Edward D. Saslaw of counsel), for respondent.
Alex Smith, Middletown, NY, for appellant.
David M. Hoovler, District Attorney, Middletown, NY (Edward D. Saslaw of counsel), for respondent.
REINALDO E. RIVERA, J.P., LINDA CHRISTOPHER, PAUL WOOTEN, JOSEPH A. ZAYAS, JJ.
DECISION & ORDER
Appeal by the defendant, as limited by his motion, from a sentence of the County Court, Orange County (Craig S. Brown, J.), imposed March 5, 2020, upon his plea of guilty, on the ground that the sentence is excessive.
ORDERED that the sentence is affirmed.
Contrary to the People's contention, the record does not establish that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Brown, 195 A.D.3d 943, 943, 146 N.Y.S.3d 514 ; People v. Burbridge, 194 A.D.3d 831, 832, 147 N.Y.S.3d 129 ), or that the appeal waiver still applied after the terms of the negotiated disposition of this case were materially altered (cf. People v. Maracle, 19 N.Y.3d 925, 928, 950 N.Y.S.2d 498, 973 N.E.2d 1272 ). Accordingly, the purported waiver does not preclude this Court's review of the defendant's excessive sentence claim (see People v. Dixon, 163 A.D.3d 988, 988, 81 N.Y.S.3d 186 ).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ). Moreover, the defendant's contention that imposing consecutive sentences for this conviction and an unrelated robbery conviction violated the Eighth Amendment prohibition against cruel and unusual punishment is unpreserved for appellate review (see People v. Parsley, 150 A.D.3d 894, 896, 55 N.Y.S.3d 267 ) and, in any event, without merit. There are no exceptional circumstances here warranting modification of the sentence. The sentence imposed in this case was within the permissible statutory limit (see People v. Cruz, 54 A.D.3d 962, 963, 864 N.Y.S.2d 137 ), and, since the two convictions arose from separate crimes with different victims, the County Court did not improvidently exercise its discretion in imposing consecutive sentences (see People v. Towers, 170 A.D.2d 628, 628, 566 N.Y.S.2d 400 ).
RIVERA, J.P., CHRISTOPHER, WOOTEN and ZAYAS, JJ., concur.