People v. Simons

Appellate Division of the Supreme Court of New York

People v. Simons

2017 NY Slip Op 4665, 151 A.D.3d 1715, 53 N.Y.S.3d 841

Appellate Division of the Supreme Court of the State of New York·Decided June 9, 2017·No. 704 KA 15-02164·Published

Opinion

Appeal from a judgment of the Niagara County Court (Matthew J. Murphy, III, J.), rendered October 26, 2015. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a controlled substance in the fourth degree.

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

Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of criminal possession of a controlled substance in the fourth degree (Penal Law § 220.09 [1]). Initially, we agree with defendant that his waiver of the right to appeal does not encompass his challenge to the severity of the sentence and thus does not foreclose our review of that challenge (see People v Maracle, 19 NY3d 925, 927-928 [2012]; People v Tomeno, 141 AD3d 1120, 1120-1121 [2016], lv denied 28 NY3d 974 [2016]). Nevertheless, we conclude that the sentence is not unduly harsh or severe.

Present — Smith, J.P., Lindley, De Joseph, NeMoyer and Curran, JJ.

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Appeal from a judgment of the Niagara County Court (Matthew J. Murphy, III, J.), rendered October 26, 2015. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a controlled substance in the fourth degree.

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

Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of criminal possession of a controlled substance in the fourth degree (Penal Law § 220.09 [1]). Initially, we agree with defendant that his waiver of the right to appeal does not encompass his challenge to the severity of the sentence and thus does not foreclose our review of that challenge (see People v Maracle, 19 NY3d 925, 927-928 [2012]; People v Tomeno, 141 AD3d 1120, 1120-1121 [2016], lv denied 28 NY3d 974 [2016]). Nevertheless, we conclude that the sentence is not unduly harsh or severe.

Present — Smith, J.P., Lindley, De Joseph, NeMoyer and Curran, JJ.

People v. Simons, 2017 NY Slip Op 4665, 151 A.D.3d 1715, 53 N.Y.S.3d 841 (N.Y. Ct. App. 2017).

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Opinion

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