People v. Cookhorne

Appellate Division of the Supreme Court of New York

People v. Cookhorne

117 A.D.3d 1484, 984 N.Y.S.2d 728

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 2, 2014

StatusPublished

This text of 117 A.D.3d 1484 (People v. Cookhorne) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Cookhorne, 117 A.D.3d 1484, 984 N.Y.S.2d 728 (N.Y. Ct. App. 2014).

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Opinion

Appeal from a judgment of the Orleans County Court (James P. Punch, J.), rendered November 19, 2012. The judgment convicted defendant, upon his plea of guilty, of attempted assault in the second degree.

It is hereby ordered that the judgment so appealed from is unanimously affirmed.

Memorandum: On appeal from a judgment convicting him upon his plea of guilty of attempted assault in the second degree (Penal Law §§ 110.00, 120.05 [3]), defendant contends that the waiver of the right to appeal is not valid and challenges the severity of the fine that was imposed as part of his sentence. Although the record establishes that defendant knowingly, voluntarily and intelligently waived the right to appeal (see generally People v Lopez, 6 NY3d 248, 256 [2006]), we conclude that the valid waiver of the right to appeal does not encompass the challenge to the severity of the fine because County Court failed to advise defendant of the potential range of any fine that could be imposed as part of his sentence (see generally People v Newman, 21 AD3d 1343, 1343 [2005]; People v McLean, 302 AD2d 934, 934 [2003]), and there was no specific promise as to the amount of a fine at the time of the waiver (cf. People v Semple, 23 AD3d 1058, 1059 [2005], lv denied 6 NY3d 852 [2006]). Nevertheless, on the merits, we reject defendant’s challenge to the severity of the fine.

Present — Smith, J.P, Peradotto, Carni, Sconiers and Valentino, JJ.

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Appeal from a judgment of the Orleans County Court (James P. Punch, J.), rendered November 19, 2012. The judgment convicted defendant, upon his plea of guilty, of attempted assault in the second degree.

It is hereby ordered that the judgment so appealed from is unanimously affirmed.

Memorandum: On appeal from a judgment convicting him upon his plea of guilty of attempted assault in the second degree (Penal Law §§ 110.00, 120.05 [3]), defendant contends that the waiver of the right to appeal is not valid and challenges the severity of the fine that was imposed as part of his sentence. Although the record establishes that defendant knowingly, voluntarily and intelligently waived the right to appeal (see generally People v Lopez, 6 NY3d 248, 256 [2006]), we conclude that the valid waiver of the right to appeal does not encompass the challenge to the severity of the fine because County Court failed to advise defendant of the potential range of any fine that could be imposed as part of his sentence (see generally People v Newman, 21 AD3d 1343, 1343 [2005]; People v McLean, 302 AD2d 934, 934 [2003]), and there was no specific promise as to the amount of a fine at the time of the waiver (cf. People v Semple, 23 AD3d 1058, 1059 [2005], lv denied 6 NY3d 852 [2006]). Nevertheless, on the merits, we reject defendant’s challenge to the severity of the fine.

Present — Smith, J.P, Peradotto, Carni, Sconiers and Valentino, JJ.

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Bluebook (online)

117 A.D.3d 1484, 984 N.Y.S.2d 728, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-cookhorne-nyappdiv-2014.

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