

People v White (2016 NY Slip Op 05617)





People v White


2016 NY Slip Op 05617


Decided on July 21, 2016


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on July 21, 2016

Tom, J.P., Mazzarelli, Manzanet-Daniels, Kapnick, Kahn, JJ.


1473 1406/13

[*1]The People of the State of New York, Respondent,
vByron White, Defendant-Appellant.


Robert S. Dean, Center for Appellate Litigation, New York (Claudia B. Flores of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York County (Ross D. Mazer of counsel), for respondent.

Judgment of resentence, Supreme Court, New York County (Edward J. McLaughlin, J.), rendered October 27, 2015, resentencing defendant to a term of 10 years, unanimously affirmed.
Following a remand from this court (131 AD3d 891 [1st Dept 2015], lv denied 26 NY3d 1093 [2015]), for a youthful offender determination on defendant's conviction, upon his plea of guilty, of assault in the first degree (see People v Rudolph, 21 NY3d 497 [2013]), the resentencing court denied defendant youthful offender treatment and set forth its reasons for doing so. The court then reimposed its original sentence on that count of 10 years' imprisonment followed by five years of postrelease supervision, to run concurrently with the sentence of four to twelve years it had previously imposed on defendant's conviction of conspiracy in the second degree (upon which he was ineligible for youthful offender treatment, for the reasons stated in our original decision).
On the present appeal, defendant concedes that the resentencing court complied with this court's narrow direction under Rudolph to consider whether to treat him as a youthful offender on the assault conviction. He challenges the sentence imposed as excessive, however, and argues that this court should modify his sentence on that count in the interest of justice, either to adjudicate him a youthful offender or otherwise to reduce the term of his incarceratory sentence.
When a defendant enters a guilty plea and validly waives his right to appeal, that waiver precludes any appellate challenge to the harshness of the sentence imposed (People v Lopez, 6 NY3d 248, 256 [2006]). We previously determined that defendant had made a valid waiver of his right to appeal in connection with his guilty plea, which foreclosed our consideration of his claim regarding the sentence imposed on his conspiracy conviction (131 AD3d at 892). Our remand for the limited purpose of Rudolph compliance constituted a "narrow exception" to the general rule of Lopez barring any challenge to the excessiveness of a sentence by a defendant who had validly waived the right to appeal as part of a guilty plea proceeding (see People v Pacherille, 25 NY3d 1021, 1023 [2015]). It had no impact on the validity or effectiveness of defendant's waiver of his right to appeal, however, which was validly negotiated as part of the plea agreement. That waiver bars any challenge now to the excessiveness of the resentence or to the resentencing court's exercise of discretion in denying youthful offender treatment (id.).
The cases cited by defendant are inapposite, as they involve waivers of the right to appeal that either were followed by a resentence under conditions unknown at the time of the guilty plea and original sentence (People v Tausinger, 21 AD3d 1181, 1183 [3d Dept 2005]), or were found on appeal not to have been knowing, voluntary and intelligent (People v Flores, 134 AD3d 425 [1st Dept 2015]). Here, although the court at resentencing was not performing a ministerial function and could have imposed a lesser sentence (id. at 426-427), defendant received the same bargained-for, ten-year term the court had imposed originally. "As defendant  knew the maximum exposure [he] could face upon pleading guilty,' his valid appeal waiver precludes his [*2]present challenge to his resentence as harsh and excessive" (People v Sofia, 62 AD3d 1159, 1160 [3d Dept 2009], quoting People v Lococo, 92 NY2d 825, 827 [1998]). Under these circumstances, there was no need for any additional waiver of defendant's right
to appeal with respect to the count remanded.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JULY 21, 2016
CLERK


