People v. Johnson

May 4, 2018
366 KA 16-00585
Versions:161 A.D.3d 1529
73 N.Y.S.3d 921
2018 NY Slip Op 03255
2018 NY Slip Op 3255

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (CAITLIN M. CONNELLY OF COUNSEL), FOR DEFENDANT-APPELLANT.

JOSEPH V. CARDONE, DISTRICT ATTORNEY, ALBION (KATHERINE BOGAN OF COUNSEL), FOR RESPONDENT.

Appeal from a judgment of the Orleans County Court (James P. Punch, J.), rendered June 29, 2015. The judgment convicted defendant, upon his plea of guilty, of attempted criminal sale of a controlled substance in the third 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 attempted criminal sale of a controlled substance in the third degree (Penal Law §§ 110.00, 220.39 [1]). Even assuming, arguendo, that defendant‘s waiver of the right to appeal is invalid and thus does not preclude our review of his challenge to the severity of his sentence (see People v Davis, 114 AD3d 1166, 1167 [4th Dept 2014], lv denied 23 NY3d 1035 [2014]), we conclude that the sentence is not unduly harsh or severe.

As the People correctly concede, however, the certificate of conviction and uniform sentence and commitment must be amended because they incorrectly reflect that defendant was sentenced as a second felony offender when he was actually sentenced as a second felony drug offender (see People v Holmes, 147 AD3d 1367, 1368 [4th Dept 2017], lv denied 29 NY3d 998 [2017]).

Entered: May 4, 2018

Mark W. Bennett

Clerk of the Court