Opinion
No. 113512
02-01-2024
The People of the State of New York, Respondent, v. Kwabena Appiah, Appellant.
Steven M. Sharp, Albany, for appellant. Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.
Calendar Date: May 26, 2023
Steven M. Sharp, Albany, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.
Before: Garry, P.J., Clark, Lynch, Reynolds Fitzgerald and McShan, JJ.
Clark, J.
Appeal (upon remittal from the Court of Appeals) from a judgment of the County Court of Schenectady County (Mark J. Caruso, J.), rendered January 28, 2022, convicting defendant upon his plea of guilty of the crime of assault in the second degree.
The relevant facts pertaining to this appeal are set forth in our prior decision (218 A.D.3d 1060 [3d Dept 2023], revd ___ N.Y.3d ___, 2024 NY Slip Op 00158 [2024]). In that decision, we affirmed the judgment of conviction with two Justices concluding that defendant's waiver of his right to appeal was invalid but declining to invoke our interest of justice jurisdiction to reduce defendant's sentence (id. at 1061-1063), and a third Justice voting to affirm upon finding defendant's appeal waiver valid - without reaching defendant's challenge to the imposed sentence (id. at 1063-1064 [Lynch, J., concurring]). Two Justices agreed that defendant's appeal waiver was invalid but dissented, writing that they would have invoked this Court's interest of justice jurisdiction to reduce defendant's sentence (id. at 1064-1067 [McShan, J., dissenting]). Upon appeal, the Court of Appeals found defendant's appeal waiver invalid but, noting that we lacked a majority on defendant's excessive sentence challenge, reversed and remitted the matter to this Court for consideration of that issue (___ NY3 ___, ___, 2024 NY Slip Op 00158, *1 [2024]). Having engaged in such consideration, for the reasons articulated in our prior decision (218 A.D.3d at 1062), we decline to invoke our interest of justice jurisdiction to reduce defendant's lawful sentence.
Lynch and Reynolds Fitzgerald, JJ., concur.
McShan, J. (dissenting). For the reasons articulated in our prior dissent in this matter (218 A.D.3d 1060, 1064-1067 [3d Dept 2023, McShan, J., dissenting], revd ___ N.Y.3d ___, 2024 NY Slip Op 00158 [2024]), we would reduce defendant's sentence in the interest of justice (see People v Swift, 195 A.D.3d 1496, 1499 [4th Dept 2021], lv denied 37 N.Y.3d 1030 [2021]; People v Gillie, 185 A.D.3d 1539, 1542 [4th Dept 2020], lv denied 35 N.Y.3d 1094 [2020]; People v Persen, 185 A.D.3d 1288, 1295-1296 [3d Dept 2020], lv denied 36 N.Y.3d 1099 [2021]).
Garry, P.J., concurs.
ORDERED that the judgment is affirmed.