People v. Holmes
| Decision Date | 03 May 2002 |
| Docket Number | 00-01907,4 |
| Parties | PEOPLE OF THE STATE OF NEW YORK,, v MARLEK HOLMES,KA 00-01907 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FOURTH JUDICIAL DEPARTMENT Decided on |
| Court | New York Supreme Court — Appellate Division |
Appeal from a judgment of Genesee County Court (Noonan, J.), entered June 14, 2000, convicting defendant after a jury trial of, inter alia, sexual abuse in the first degree.
GARY A. HORTON, PUBLIC DEFENDER, BATAVIA (BRIDGET L. FIELD OF COUNSEL), FOR DEFENDANT-APPELLANT.
LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (DAVID E. GANN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously modified on the law by amending the permanent order of protection to limit its duration to "three years from the date of the expiration of the maximum term of [the] * * * sentence of imprisonment actually imposed" (CPL 530.13 [4] [ii]), taking into account any jail time credit to which defendant is entitled and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial of sexual abuse in the first degree (Penal Law former § 130.65 [1]) and petit larceny (§ 155.25). We reject the contention of defendant that his waiver of the right to appeal is invalid because it was entered in the course of plea proceedings concerning unrelated charges, after defendant had been sentenced and had filed his notice of appeal in this matter. We reject defendant's further contention that County Court no longer had jurisdiction over this matter by the time the waiver was elicited. "[T]here is nothing offensive, constitutionally, statutorily or as a matter of policy, in permitting a defendant to waive rights to appeal from judgments of more than one conviction as part of a negotiated plea in situations such as this" (People v Govan, 199 A.D.2d 815, 816, lv denied 83 N.Y.2d 853, citing People v Korona, 197 A.D.2d 788, lv denied 82 N.Y.2d 926), irrespective of whether that plea stems from charges "closely connected" (Govan, 199 A.D.2d at 816; see Korona, 197 A.D.2d at 789) to those of which defendant was found guilty after trial (see People v Boykin, 281 A.D.2d 708). Contrary to the further contention of defendant, his waiver of the right to appeal was knowing and voluntary (see id. at 708-709; Govan, 199 A.D.2d at 816; Korona, 197 A.D.2d at 790), and there is no indication on this record that it was elicited in order to "conceal error or prosecutorial overreaching" that occurred at trial (Boykin,281 A.D.2d at 708; see Govan, 199 A.D.2d at 816; Korona, 197 A.D.2d at 790). To the contrary, the record establishes that the waiver stems from the desire of defendant to "minimize his jail time" and avail himself of a promise of concurrent sentencing (Korona, 197 A.D.2d at 790).
The waiver of the right...
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