People v. Fusco

2017 NY Slip Op 2677, 149 A.D.3d 776, 49 N.Y.S.3d 631

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 5, 2017
• Docket: 2016-03493
• Status: Published

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Delligatti, J.), rendered April 15, 2016, convicting him of attempted criminal sexual act in the first degree, upon his plea of guilty, and imposing sentence.

Ordered that the judgment is affirmed.

Prior to the imposition of sentence upon the defendant’s conviction of attempted criminal sexual act in the first degree, the defendant moved to withdraw his plea of guilty to that charge. Contrary to the defendant’s contention, the Supreme Court did not improvidently exercise its discretion in denying his motion. The record establishes that the defendant’s plea of guilty was “ ‘entered voluntarily, knowingly and intelligently’ ” (People v Haffiz, 19 NY3d 883, 884 [2012], quoting People v Fiumefreddo, 82 NY2d 536, 543 [1993]; see People v Grant, 61 AD3d 177, 182 [2009]; People v Pierre, 8 AD3d 904, 905 [2004]).

The defendant’s purported waiver of his right to appeal was invalid (see People v Bradshaw, 18 NY3d 257, 264-265 [2011]; People v Lopez, 6 NY3d 248, 256 [2006]; People v Mack, 142 AD3d 1185, 1185 [2016]; People v Flores, 139 AD3d 753, 753 [2016]) and, thus, does not preclude review of his excessive sentence claim. However, the sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).

Mastro, J.P., Chambers, Miller and Maltese, JJ., concur.