People v. Neely, 529

• Decision Date: 27 April 2018
• Docket Number: KA 16–01122,529
• Citation: 72 N.Y.S.3d 892 (Mem),160 A.D.3d 1474
• Parties: The PEOPLE of the State of New York, Respondent, v. Kenneth NEELY, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

160 A.D.3d 1474

72 N.Y.S.3d 892 (Mem)

The PEOPLE of the State of New York, Respondent,

v.Kenneth NEELY, Defendant–Appellant.

529

KA 16–01122

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

Entered: April 27, 2018

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KRISTIN M. PREVE OF COUNSEL), FOR DEFENDANT–APPELLANT.

JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. LOWRY OF COUNSEL), FOR RESPONDENT.

PRESENT: SMITH, J.P., CARNI, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ.

MEMORANDUM AND ORDERMemorandum:

Defendant appeals from a judgment convicting him upon his plea of guilty of attempted rape in the first degree ( Penal Law §§ 110.00, 130.35[1] ) and sexual misconduct (§ 130.20[1] ). Contrary to defendant's contention, the record establishes that he knowingly, intelligently, and voluntarily waived his right to appeal (see People v. Woods, 126 A.D.3d 1543, 1543, 6 N.Y.S.3d 857 [4th Dept. 2015], lv denied 27 N.Y.3d 970, 36 N.Y.S.3d 631, 56 N.E.3d 911 [2016] ). Defendant further contends that the valid waiver of the right to appeal does not encompass his challenge to the severity of the sentence inasmuch as Supreme Court failed to advise him that he could be sentenced consecutively for his crimes. We reject that contention. The court could not have imposed the determinate sentence for attempted rape in the first degree to run consecutively to the definite sentence for sexual misconduct (see § 70.35; see generally People v. Abuhamra, 107 A.D.3d 1630, 1631, 968 N.Y.S.2d 294 [4th Dept. 2013], lv denied 22 N.Y.3d 1038, 981 N.Y.S.2d 372, 4 N.E.3d 384 [2013] ).

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.