Opinion
2021–05377, 2021–05528, 2021–05531 Ind. Nos. 48/19, 1086/19, 1256/19
04-19-2023
The PEOPLE, etc., respondent, v. Kawand COFIELD, appellant.
Thomas R. Villecco, Jericho, NY, for appellant. Anne T. Donnelly, District Attorney, Mineola, NY (Judith R. Sternberg, Kelly Gans, and David Glovin of counsel), for respondent.
Thomas R. Villecco, Jericho, NY, for appellant.
Anne T. Donnelly, District Attorney, Mineola, NY (Judith R. Sternberg, Kelly Gans, and David Glovin of counsel), for respondent.
ANGELA G. IANNACCI, J.P., CHERYL E. CHAMBERS, PAUL WOOTEN, HELEN VOUTSINAS, JJ.
DECISION & ORDER Appeals by the defendant from three judgments of the County Court, Nassau County (Terence P. Murphy, J.), all rendered January 15, 2020, convicting him of criminal possession of a controlled substance in the third degree under Indictment No. 48/19, criminal possession of a weapon in the second degree under Indictment No. 1086/19, and criminal possession of a weapon in the second degree under Indictment No. 1256/19, upon his pleas of guilty, and imposing sentences.
ORDERED that the judgments are affirmed.
The defendant pleaded guilty to criminal possession of a controlled substance in the third degree and two counts of criminal possession of a weapon in the second degree. He was sentenced, as a second violent felony offender, to a negotiated term of imprisonment.
Contrary to the People's contention, the defendant's valid appeal waiver does not preclude appellate review of his contention that the sentences were illegal due to the People's failure to establish the requisite tolling periods to bring the defendant's prior felony conviction within the applicable 10–year period (see Penal Law § 70.04[1][b][iv]-[v] ; People v. Joseph, 167 A.D.3d 776, 776–777, 89 N.Y.S.3d 278 ; accord People v. Lollie, 204 A.D.3d 1430, 1431, 166 N.Y.S.3d 805 ; People v. Soto, 138 A.D.3d 533, 534, 28 N.Y.S.3d 320 ; People v. Parker, 121 A.D.3d 1190, 1190, 996 N.Y.S.2d 376 ).
The People are correct, however, in their contention that the issue is not preserved for appellate review (see People v. Lashley, 37 N.Y.3d 1140, 1141, 159 N.Y.S.3d 391, 180 N.E.3d 555 ; People v. Spencer, 165 A.D.3d 706, 707, 85 N.Y.S.3d 219 ; accord People v. Lollie, 204 A.D.3d at 1431, 166 N.Y.S.3d 805 ; People v. Parker, 121 A.D.3d at 1190, 996 N.Y.S.2d 376 ). The defendant's contention is "not reviewable under the narrow illegal sentence exception to the preservation requirement because it was not readily discernible from the trial record that the sentence[s] the court imposed [were] not within the permissible range" ( People v. Lashley, 37 N.Y.3d at 1141, 159 N.Y.S.3d 391, 180 N.E.3d 555 [internal quotation marks omitted]; see People v. Nieves, 2 N.Y.3d 310, 315–316, 778 N.Y.S.2d 751, 811 N.E.2d 13 ; see also People v. Santiago, 22 N.Y.3d 900, 903, 977 N.Y.S.2d 144, 999 N.E.2d 507 ; People v. Samms, 95 N.Y.2d 52, 56–58, 710 N.Y.S.2d 310, 731 N.E.2d 1118 ; People v. Martinez, 130 A.D.3d 1087, 1088, 12 N.Y.S.3d 380 ). We decline to reach the issue in the exercise of our interest of justice jurisdiction.
IANNACCI, J.P., CHAMBERS, WOOTEN and VOUTSINAS, JJ., concur.