People v. Fraisar

Appellate Division of the Supreme Court of New York

People v. Fraisar

2017 NY Slip Op 4723, 151 A.D.3d 1757, 53 N.Y.S.3d 852

Appellate Division of the Supreme Court of the State of New York·Decided June 9, 2017·No. 816 KA 14-01904·Published·Cited by 3 cases

Opinion

Appeal from a judgment of the Genesee County Court (Robert C. Noonan, J.), rendered September 16, 2015. The judgment convicted defendant, upon his plea of guilty, of attempted criminal possession of a weapon 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 criminal possession of a weapon in the second degree (Penal Law §§ 110.00, 265.03 [3]), defendant contends that his waiver of the right to appeal was not knowingly, intelligently, and voluntarily entered. We reject that contention (see generally People v Lopez, 6 NY3d 248, 256 [2006]). Defendant’s valid waiver of his right to appeal, however, does not preclude him from challenging the severity of his sentence, inasmuch as “the record establishes that defendant waived his right to appeal before County Court advised him of the potential periods of imprisonment that could be imposed” (People v Mingo, 38 AD3d 1270, 1271 [2007]). Nevertheless, we conclude that the sentence is not unduly harsh or severe.

Present — Whalen, P.J., Smith, Carni, Curran and Scud-der, JJ.

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Appeal from a judgment of the Genesee County Court (Robert C. Noonan, J.), rendered September 16, 2015. The judgment convicted defendant, upon his plea of guilty, of attempted criminal possession of a weapon 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 criminal possession of a weapon in the second degree (Penal Law §§ 110.00, 265.03 [3]), defendant contends that his waiver of the right to appeal was not knowingly, intelligently, and voluntarily entered. We reject that contention (see generally People v Lopez, 6 NY3d 248, 256 [2006]). Defendant’s valid waiver of his right to appeal, however, does not preclude him from challenging the severity of his sentence, inasmuch as “the record establishes that defendant waived his right to appeal before County Court advised him of the potential periods of imprisonment that could be imposed” (People v Mingo, 38 AD3d 1270, 1271 [2007]). Nevertheless, we conclude that the sentence is not unduly harsh or severe.

Present — Whalen, P.J., Smith, Carni, Curran and Scud-der, JJ.

People v. Fraisar, 2017 NY Slip Op 4723, 151 A.D.3d 1757, 53 N.Y.S.3d 852 (N.Y. Ct. App. 2017).

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