People v. Timmons, 399

• Decision Date: 26 April 2019
• Docket Number: KA 16–02161,399
• Citation: 97 N.Y.S.3d 550 (Mem),171 A.D.3d 1501
• Parties: The PEOPLE of the State of New York, Respondent, v. Sean TIMMONS, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

171 A.D.3d 1501

97 N.Y.S.3d 550 (Mem)

The PEOPLE of the State of New York, Respondent,

v.Sean TIMMONS, Defendant–Appellant.

399

KA 16–02161

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

Entered: April 26, 2019

FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (SARA A. GOLDFARB OF COUNSEL), FOR DEFENDANT–APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.

PRESENT: WHALEN, P.J., LINDLEY, TROUTMAN, AND WINSLOW, JJ.

MEMORANDUM AND ORDER

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

Memorandum: On appeal from a judgment convicting him upon his plea of guilty of grand larceny in the fourth degree ( Penal Law § 155.30 [1 ] ), defendant contends that his waiver of the right to appeal is invalid and that his enhanced sentence, imposed after he was arrested for robbery during his release pending sentencing, is unduly harsh and severe. Contrary to defendant's contention, the record establishes that he validly waived his right to appeal (see People v. Curtis , 162 A.D.3d 1758, 1758, 76 N.Y.S.3d 443 [4th Dept. 2018], lv denied 32 N.Y.3d 1003, 86 N.Y.S.3d 761, 111 N.E.3d 1117 [2018] ; People v. Lefler , 159 A.D.3d 1427, 1427, 70 N.Y.S.3d 739 [4th Dept. 2018], lv denied 31 N.Y.3d 1118, 81 N.Y.S.3d 378, 106 N.E.3d 761 [2018] ). "[E]ven assuming, arguendo, that defendant's challenge to the severity of his sentence is not encompassed by his valid waiver of the right to appeal" ( People v. Weatherbee , 147 A.D.3d 1526, 1526, 46 N.Y.S.3d 811 [4th Dept. 2017], lv denied 29 N.Y.3d 1038, 62 N.Y.S.3d 307, 84 N.E.3d 979 [2017] ; see People v. Watson , 169 A.D.3d 1526, 1528, 93 N.Y.S.3d 507 [4th Dept. 2019] ; People v. Huggins , 45 A.D.3d 1380, 1380–1381, 845 N.Y.S.2d 609 [4th Dept. 2007], lv denied 9 N.Y.3d 1006, 850 N.Y.S.2d 394, 880 N.E.2d 880 [2007] ), we perceive no basis in the record to exercise our power to modify the sentence as a matter of discretion in the interest of justice (see CPL 470.15[6][b] ).