People v. Marinelli

205 A.D.3d 734, 165 N.Y.S.3d 717, 2022 NY Slip Op 03008

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 4, 2022
• Docket: ANGELA G. IANNACCI, J.P.
• Status: Published

Opinion

People v Marinelli (2022 NY Slip Op 03008)

People v Marinelli

2022 NY Slip Op 03008

Decided on May 4, 2022

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 4, 2022 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
ANGELA G. IANNACCI, J.P.
ROBERT J. MILLER
JOSEPH J. MALTESE
DEBORAH A. DOWLING, JJ.

2021-03271

[*1]The People of the State of New York, respondent,

v

Gregg Marinelli, appellant. (S.C.I. No. 689/19)

Law Offices of Michael Pollok, PLLC, Red Hook, NY, for appellant.

David M. Hoovler, District Attorney, Goshen, NY (Alexander J. H. Ochoa and Andrew R. Kass of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Orange County (Craig Steven Brown, J.), rendered April 21, 2021, convicting him of criminal possession of a weapon in the second degree and hindering prosecution in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's purported waiver of his right to appeal was invalid. The County Court mischaracterized the nature of the right to appeal by stating that the defendant's convictions and sentence would be final (see People v Shanks, 37 NY3d 244, 252; People v Bisono, 36 NY3d 1013, 1017-1018; People v Bradshaw, 18 NY3d 257, 264), and the written waiver form did not clarify that appellate review remained available for select issues (see People v Thomas, 34 NY3d 545, 566; People v Brown, 195 AD3d 943, 943). Thus, the purported waiver does not preclude appellate review of the defendant's contention that the sentence imposed was excessive. However, the sentence imposed was not excessive (see People v Suitte, 90 AD2d 80).

The defendant's contention that the sentence imposed violated the Eighth Amendment to the United States Constitution and article 1, § 5, of the New York Constitution, prohibiting cruel and unusual punishment, is unpreserved for appellate review (see People v Pena, 28 NY3d 727, 730; People v Cerasaro, 179 AD3d 832).

IANNACCI, J.P., MILLER, MALTESE and DOWLING, JJ., concur.

ENTER:

Maria T. Fasulo

Clerk of the Court