People v. Moissett
| Citation | 546 N.Y.S.2d 463,154 A.D.2d 786 |
| Parties | The PEOPLE of the State of New York, Respondent, v. John M. MOISSETT, Jr., Appellant. |
| Decision Date | 19 October 1989 |
| Court | New York Supreme Court Appellate Division |
John Ferrara, Legal Aid Soc. of Sullivan County, Monticello, for appellant.
Stephen F. Lungen, Dist. Atty. (Bonnie M. Mitzner, of counsel), Monticello, for respondent.
Before WEISS, J.P., and MIKOLL, YESAWICH, MERCURE and HARVEY, JJ.
Appeal from a judgment of the County Court of Sullivan County (Hanofee, 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 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).
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People v. Burk
... ... The People also argue that this court's holding in People v. Russell (supra ) is apparently contrary to the decisions of the Court of Appeals in People v. Seaberg (supra ) and in People v. Moissett, 76 N.Y.2d 909, 563 N.Y.S.2d 43, 564 N.E.2d 653 ... In People v. Russell, supra, 168 A.D.2d at 580-581, 562 N.Y.S.2d 796 this court held that a defendant had not waived his right to challenge the purported excessiveness of his sentence under the following circumstances: ... "At a ... ...
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... ... He negotiated for the sentence and it was promised to him as part of the plea agreement (see, People 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 within the statutory guidelines (see, Penal Law § 70.00[2], [3], was in accordance with the plea bargain and was in full satisfaction of a ... ...
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