People v. Fornal

Decision Date06 November 1995
Citation221 A.D.2d 361,633 N.Y.S.2d 372
PartiesThe PEOPLE, etc., Respondent, v. Melissa FORNAL, Appellant.
CourtNew York Supreme Court — Appellate Division

Bruce D. Townsend, Walden, for appellant.

Francis D. Phillips II, District Attorney, Goshen (Richard B. Schoenberg, of counsel), for respondent.

Before BALLETTA, J.P., and MILLER, O'BRIEN and COPERTINO, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the County Court, Orange County (Pano Z. Patsalos, J.), rendered November 8, 1993, convicting her of manslaughter in the first degree, upon her plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant contends that the April 1, 1994, amendment to Correction Law § 851(2) (L 1994, ch 60, § 42), which, inter alia, precludes inmates convicted of manslaughter in the first degree from participating in a "work release program" (Correction Law § 851[3], constitutes an ex post facto law and deprives her of due process. The amendment was enacted after the defendant was sentenced and applies to those inmates who were not participating in a work release program as of April 1, 1994 (L 1994, ch 60, § 46).

This issue is improperly raised on the direct appeal from the judgment of conviction, as it does not affect the propriety of the defendant's sentence (see, e.g., People v. Curtis, 143 A.D.2d 1030, 533 N.Y.S.2d 582; People v. Walters, 91 A.D.2d 843, 458 N.Y.S.2d 400). The defendant's remedy, if she be so advised, is a proceeding pursuant to CPLR article 78 to challenge the actions of prison officials and the constitutionality of the amendment as applied to her (see, e.g., Matter of Jandelli v. Coughlin, 217 A.D.2d 733, 629 N.Y.S.2d 303; Matter of McCormack v. Posillico, 213 A.D.2d 913, 624 N.Y.S.2d 304). In any event, were we to reach the issue, we would find it to be without merit (see, Matter of Jandelli v. Coughlin, supra; Matter of McCormack v. Posillico, supra; see also, People v. Miller, 79 A.D.2d 687, 434 N.Y.S.2d 36, cert. denied 452 U.S. 919, 101 S.Ct. 3056, 69 L.Ed.2d 423).

We conclude that the defendant's sentence was not excessive (see, People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675). The court kept the promise made as part of the negotiated plea agreement that it would not impose a sentence greater than 4 to 12 years (see, e.g., People v. Mercer, 204 A.D.2d 741, 612 N.Y.S.2d 650; People v. Charlot, 203 A.D.2d 374, 612 N.Y.S.2d 908; People v. Kazepis, 101 A.D.2d 816, ...

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2 cases
  • People v. Catts
    • United States
    • New York Supreme Court — Appellate Division
    • December 8, 1997
    ...v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675). The defendant was sentenced consistent with the plea agreement (see, People v. Fornal, 221 A.D.2d 361, 362, 633 N.Y.S.2d 372; People v. Kazepis, 101 A.D.2d 816, 475 N.Y.S.2d 351). Although the sentence imposed was the maximum, the plea was in sati......
  • People v. Gladkowski
    • United States
    • New York Supreme Court — Appellate Division
    • November 24, 1997
    ...in denying her application for temporary work release may not be raised on the direct appeal from the judgment (see, People v. Fornal, 221 A.D.2d 361, 633 N.Y.S.2d 372; People v. Curtis, 143 A.D.2d 1030, 533 N.Y.S.2d ...

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