People v. Hutchings

222 A.D.3d 1399

200 N.Y.S.3d 247 (Mem)

The PEOPLE of the State of New York, Respondent,

v.Eugene S. HUTCHINGS, Defendant-Appellant.

902

KA 18-00607

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: December 22, 2023

MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (CAROLYN WALTHER OF COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.

PRESENT: WHALEN, P.J., CURRAN, OGDEN, GREENWOOD, AND NOWAK, JJ.

MEMORANDUM AND ORDER

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, inter alia, attempted murder in the second degree ( Penal Law §§ 110.00, 125.25 [1] ). As defendant contends and the People correctly concede, defendant's waiver of the right to appeal is invalid (see People v. Thomas , 34 N.Y.3d 545, 564-566, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied ––– U.S. ––––, 140 S.Ct. 2634, 206 L.Ed.2d 512 [2020] ; People v. Jackson , 207 A.D.3d 1077, 1077, 169 N.Y.S.3d 556 [4th Dept. 2022], lv denied 38 N.Y.3d 1151, 174 N.Y.S.3d 50, 194 N.E.3d 757 [2022] ). We are therefore not precluded from reviewing defendant's challenge to the severity of his sentence (see People v. Martin , 213 A.D.3d 1299, 1299-1300, 181 N.Y.S.3d 927 [4th Dept. 2023] ). Nevertheless, we reject defendant's contention that the sentence is unduly harsh and severe.