

People v McAllister (2015 NY Slip Op 05701)





People v McAllister


2015 NY Slip Op 05701


Decided on July 1, 2015


Appellate Division, Second 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 1, 2015
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

MARK C. DILLON, J.P.
THOMAS A. DICKERSON
CHERYL E. CHAMBERS
BETSY BARROS, JJ.


2013-04102
 (Ind. No. 1106/09)

[*1]The People of the State of New York, respondent,
vIrving McAllister, appellant.


Lynn W. L. Fahey, New York, N.Y. (Kendra L. Hutchinson of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Jeanette Lifschitz, and Aurora Alvarez-Calderon of counsel), for respondent.

DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Blumenfeld, J.), rendered March 11, 2013, convicting him of attempted burglary in the second degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
Contrary to the People's contention, the record does not reflect that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v Bradshaw, 18 NY3d 257, 265; People v Lopez, 6 NY3d 248, 256-257; People v Brown, 122 AD3d 133, 138-145; People v Nugent, 109 AD3d 625). Accordingly, we have considered the defendant's contention that the sentence imposed constituted cruel and unusual punishment. However, the defendant's contention is without merit. The defendant failed to demonstrate the existence of exceptional circumstances that would render his sentence, which was the statutory minimum and the result of a negotiated plea, cruel and unusual punishment (see People v Wright, 85 AD3d 1642, 1644; People v Clerge, 69 AD3d 955; People v Rogers, 63 AD3d 1631; People v Cruz, 54 AD3d 962; People v Reese, 31 AD3d 582, 583).
DILLON, J.P., DICKERSON, CHAMBERS and BARROS, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


