People v. Moissett

CourtNew York Supreme Court Appellate Division
Writing for the CourtBefore WEISS; MIKOLL; WEISS
Citation546 N.Y.S.2d 463,154 A.D.2d 786
PartiesThe PEOPLE of the State of New York, Respondent, v. John M. MOISSETT, Jr., Appellant.
Decision Date19 October 1989

Page 463

546 N.Y.S.2d 463
154 A.D.2d 786
The PEOPLE of the State of New York, Respondent,
v.
John M. MOISSETT, Jr., Appellant.
Supreme Court, Appellate Division,
Third Department.
Oct. 19, 1989.

John Ferrara, Legal Aid Soc. of Sullivan County, Monticello, for appellant.

Stephen F. Lungen, Dist. Atty. (Bonnie M. Mitzner, of counsel), Monticello, for respondent.

[154 A.D.2d 787] Before WEISS, J.P., and MIKOLL, YESAWICH, MERCURE and HARVEY, JJ.

MIKOLL, Justice.

[154 A.D.2d 786] Appeal from a judgment of the County Court of Sullivan County (Hanofee, [154 A.D.2d 787] J.), rendered June 29, 1987, convicting defendant upon his plea of guilty of the crime of manslaughter in the first degree.

After extensive negotiations, defendant entered a guilty plea to manslaughter in the first degree in satisfaction of a Grand Jury indictment charging him with murder in the second degree and manslaughter in the first degree. The indictment alleged that defendant engaged "in conduct to include but not limited to biting, striking, and compressing the neck" of the victim, a

Page 464

15-month-old boy, resulting in the victim's death. Defendant was sentenced in accordance with the plea agreement to 8 1/3 to 25 years' imprisonment. As a part of the plea agreement defendant waived his right to appeal this conviction.

On appeal defendant contends that the waiver of his right to appeal should be vacated because the waiver was not knowingly, voluntarily and intelligently made and the prosecution failed to demonstrate that there was any legitimate purpose to be gained by obtaining the waiver. Defendant next argues that the sentence imposed was excessive and should be reduced in the interest of justice.

The appeal should be dismissed. The record indicates that defendant knowingly, voluntarily and intelligently waived his right to appeal as a part of the plea negotiations (see, People v. Seaberg, 74 N.Y.2d 1, 11, 543 N.Y.S.2d 968, 541 N.E.2d 1022). "By pleading guilty a defendant forecloses the appellate court from reviewing the merits of the plea bargain in the interest of justice and there is nothing inherently wrong in a defendant similarly electing to foreclose review of a negotiated sentence" (id., at 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022).

"While a defendant always retains the right to challenge the legality of the sentence or the voluntariness of the plea * * * the negotiating process serves little purpose if the terms of 'a carefully orchestrated bargain'...

To continue reading

Request your trial
8 practice notes
  • People v. Burk
    • United States
    • New York Supreme Court — Appellate Division
    • July 6, 1992
    ...the defendant that he had the right to appeal" (see also, People v. Crouch, 161 AD2d 834 [555 N.Y.S.2d 883]. In People v. Moissett, 154 A.D.2d 786, 546 N.Y.S.2d 463, affd 76 N.Y.2d 909, 563 N.Y.S.2d 43, 564 N.E.2d 653, the Appellate Division, Third Department, determined that review of the ......
  • Albert T, Matter of
    • United States
    • New York Supreme Court Appellate Division
    • December 31, 1992
    ...care for Albert (see, Matter of Terry S. [Carol T.], 156 A.D.2d 763, 765, 549 N.Y.S.2d 184; Matter of Scotty C. [Nancy B.], supra, 154 A.D.2d at 786, 546 N.Y.S.2d 461). Specifically, respondent was required to remove "destructive tendencies" from her life (see, Matter of Travis Lee G. [Mich......
  • People v. Michaels
    • United States
    • New York Supreme Court — Appellate Division
    • April 29, 1993
    ...v. Burk, 181 A.D.2d 74, 586 N.Y.S.2d 140, lv. denied 80 N.Y.2d 927, 589 N.Y.S.2d 855, 603 N.E.2d 960; see also, People v. Moissett, 154 A.D.2d 786, 546 N.Y.S.2d 463, affd. 76 N.Y.2d 909, 563 N.Y.S.2d 43, 564 N.E.2d 653). In any event, the sentence of 5 to 15 years' imprisonment was well wit......
  • People v. Ross
    • United States
    • New York Supreme Court Appellate Division
    • April 30, 1992
    ...of a plea is never waived (People v. Seaberg, supra, 74 N.Y.2d at 10-11, 543 N.Y.S.2d 968, 541 N.E.2d 1022; People v. Moissett, 154 A.D.2d 786, 787, 546 N.Y.S.2d 463, aff'd 76 N.Y.2d 909, 563 N.Y.S.2d 43, 564 N.E.2d 653; People v. Bennett, 152 A.D.2d 886, 887, 543 N.Y.S.2d 771, lv. denied, ......
  • Request a trial to view additional results
8 cases
  • People v. Burk
    • United States
    • New York Supreme Court — Appellate Division
    • July 6, 1992
    ...the defendant that he had the right to appeal" (see also, People v. Crouch, 161 AD2d 834 [555 N.Y.S.2d 883]. In People v. Moissett, 154 A.D.2d 786, 546 N.Y.S.2d 463, affd 76 N.Y.2d 909, 563 N.Y.S.2d 43, 564 N.E.2d 653, the Appellate Division, Third Department, determined that review of the ......
  • Albert T, Matter of
    • United States
    • New York Supreme Court Appellate Division
    • December 31, 1992
    ...care for Albert (see, Matter of Terry S. [Carol T.], 156 A.D.2d 763, 765, 549 N.Y.S.2d 184; Matter of Scotty C. [Nancy B.], supra, 154 A.D.2d at 786, 546 N.Y.S.2d 461). Specifically, respondent was required to remove "destructive tendencies" from her life (see, Matter of Travis Lee G. [Mich......
  • People v. Michaels
    • United States
    • New York Supreme Court — Appellate Division
    • April 29, 1993
    ...v. Burk, 181 A.D.2d 74, 586 N.Y.S.2d 140, lv. denied 80 N.Y.2d 927, 589 N.Y.S.2d 855, 603 N.E.2d 960; see also, People v. Moissett, 154 A.D.2d 786, 546 N.Y.S.2d 463, affd. 76 N.Y.2d 909, 563 N.Y.S.2d 43, 564 N.E.2d 653). In any event, the sentence of 5 to 15 years' imprisonment was well wit......
  • People v. Ross
    • United States
    • New York Supreme Court Appellate Division
    • April 30, 1992
    ...of a plea is never waived (People v. Seaberg, supra, 74 N.Y.2d at 10-11, 543 N.Y.S.2d 968, 541 N.E.2d 1022; People v. Moissett, 154 A.D.2d 786, 787, 546 N.Y.S.2d 463, aff'd 76 N.Y.2d 909, 563 N.Y.S.2d 43, 564 N.E.2d 653; People v. Bennett, 152 A.D.2d 886, 887, 543 N.Y.S.2d 771, lv. denied, ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT