People v. Cheatham

266 A.D.2d 875, 698 N.Y.S.2d 188, 1999 N.Y. App. Div. LEXIS 11749

Opinion

—Judgment unanimously modified on the law and as modified affirmed and matter remitted to Erie County Court for further proceedings in accordance with the following Memorandum: The record establishes that defendant’s waiver of the right to appeal was knowing, intelligent and voluntary (see, People v Moissett, 76 NY2d 909; People v Saunders, 190 AD2d 1092, 1093, lv denied 81 NY2d 1019). The contentions of defendant that County Court erred in failing to suppress a showup identification and physical evidence allegedly recovered as a result of an illegal custodial interrogation do not survive that waiver (see, People v Vaccaro, 206 AD2d 952, 953, lv denied 84 NY2d 940).

Defendant’s further contention that the sentence is illegal survives the waiver of the right to appeal (see, People v Seaberg, 74 NY2d 1, 9). Indeed, the People candidly concede that defendant’s sentence is illegal and that the matter must be remitted to County Court to afford defendant the opportunity to withdraw his guilty plea or be resentenced (see, People v Martinez, 213 AD2d 1072, 1073). Consequently, we modify the judgment by vacating the sentence (see, CPL 470.15 [2] [c]), and we remit the matter to Erie County Court for that purpose. (Appeal from Judgment of Erie County Court, DiTullio, J.— Attempted Robbery, 1st Degree.) Present — Lawton, J. P., Hayes, Pigott, Jr., Hurlbutt and Balio, JJ.