Opinion
2018–13927 Ind. No. 350/18
01-15-2020
The PEOPLE, etc., respondent, v. Louis FLORIO, appellant.
Arza Feldman, Manhasset, NY, for appellant. Madeline Singas, District Attorney, Mineola, N.Y. (Jason R. Richards and Andrew Fukuda of counsel), for respondent.
Arza Feldman, Manhasset, NY, for appellant.
Madeline Singas, District Attorney, Mineola, N.Y. (Jason R. Richards and Andrew Fukuda of counsel), for respondent.
MARK C. DILLON, J.P., LEONARD B. AUSTIN, SHERI S. ROMAN, LINDA CHRISTOPHER, JJ.
DECISION & ORDER ORDERED that the judgment is affirmed.
"A general waiver of the right to appeal, which is knowing, voluntary, and intelligent, encompasses the claim that the term of imprisonment imposed under an enhanced sentence is harsh and excessive, provided that the defendant is informed that a maximum sentence could be imposed if he or she fails to comply with the conditions of the plea agreement" ( People v. Miles, 268 A.D.2d 489, 489–490, 703 N.Y.S.2d 491 ; see People v. Frazier, 127 A.D.3d 1229, 1230, 7 N.Y.S.3d 523 ).
At the plea proceeding, the Supreme Court clearly advised the defendant that its sentencing promise was conditional, and that it would be free to impose an enhanced sentence in the event that the defendant violated one or more of the conditions. Additionally, the court advised the defendant of the maximum sentence that could be imposed in the event that the defendant violated a condition. Also at the plea proceeding, the defendant waived his right to appeal after the court explained the nature and extent of the right to appeal and the consequences of waiving it. At sentencing, the defendant conceded that he violated two of the conditions of the court's sentencing promise, and the court imposed a sentence higher than it had originally promised, but less than the maximum sentence. On appeal, the defendant does not contend that the waiver was invalid or that he did not violate a condition, but seeks to invoke this Court's interest of justice jurisdiction to reduce the enhanced sentence. The defendant's general appeal waiver bars review of his request that his sentence be reduced in the interest of justice (see People v. Mickens, 151 A.D.3d 984, 984, 54 N.Y.S.3d 309 ; People v. Thompson, 148 A.D.3d 1187, 1187, 49 N.Y.S.3d 310 ; People v. Perez, 140 A.D.3d 799, 800, 30 N.Y.S.3d 918 ; People v. Frazier, 127 A.D.3d at 1230, 7 N.Y.S.3d 523 ).
The defendant's contention that his sentence violated the Eighth Amendment prohibition against cruel and unusual punishment is precluded by his valid waiver of the right to appeal (see People v. Rodriguez, 82 A.D.3d 794, 795, 917 N.Y.S.2d 917 ).
DILLON, J.P., AUSTIN, ROMAN and CHRISTOPHER, JJ., concur.