People v. Culkin

Appellate Division of the Supreme Court of New York

People v. Culkin

141 A.D.3d 1114, 33 N.Y.S.3d 796

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

DecidedJuly 1, 2016

StatusPublished

This text of 141 A.D.3d 1114 (People v. Culkin) 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. Culkin, 141 A.D.3d 1114, 33 N.Y.S.3d 796 (N.Y. Ct. App. 2016).

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Opinion

— Appeal from a judgment of the Supreme Court, Erie County (Deborah A. Haendiges, J.), rendered February 14, 2013. The judgment convicted defendant, upon his plea of guilty, of attempted burglary in the second degree (three counts), forgery in the second degree and grand larceny in the third 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, inter alia, three counts of attempted burglary in the second degree (Penal Law §§ 110.00, 140.25 [2]), defendant contends that the waiver of the right to appeal is not valid and challenges the severity of the 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 defendant’s challenge to the sentence inasmuch as Supreme Court failed to advise defendant “that he was also waiving his right to appeal any issue concerning the severity of the sentence” (People v Peterson, 111 AD3d 1412, 1412 [2013]). Nevertheless, on the merits, we conclude that the sentence is not unduly harsh or severe.

Present — Peradotto, J.P., Carni, Curran, Troutman and Scudder, JJ.

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— Appeal from a judgment of the Supreme Court, Erie County (Deborah A. Haendiges, J.), rendered February 14, 2013. The judgment convicted defendant, upon his plea of guilty, of attempted burglary in the second degree (three counts), forgery in the second degree and grand larceny in the third 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, inter alia, three counts of attempted burglary in the second degree (Penal Law §§ 110.00, 140.25 [2]), defendant contends that the waiver of the right to appeal is not valid and challenges the severity of the 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 defendant’s challenge to the sentence inasmuch as Supreme Court failed to advise defendant “that he was also waiving his right to appeal any issue concerning the severity of the sentence” (People v Peterson, 111 AD3d 1412, 1412 [2013]). Nevertheless, on the merits, we conclude that the sentence is not unduly harsh or severe.

Present — Peradotto, J.P., Carni, Curran, Troutman and Scudder, JJ.

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Bluebook (online)

141 A.D.3d 1114, 33 N.Y.S.3d 796, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-culkin-nyappdiv-2016.

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