Opinion
02-02-2024
The PEOPLE of the State of New York, Respondent, v. Davion GARBUTT, Defendant-Appellant. (Appeal No. 1.)
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (KRISTINE BIALY-VIAU OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Onondaga County Court (Thomas J. Miller, J.), rendered August 11, 2020. The judgment convicted defendant, upon his plea of guilty, of attempted robbery in the first degree.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (KRISTINE BIALY-VIAU OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., BANNISTER, MONTOUR, NOWAK, AND DELCONTE, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him, upon his plea of guilty, of attempted robbery in the first degree (Penal Law §§ 110.00, 160.15 [2]) and, in appeal No. 2, he appeals from a judgment convicting him, upon his plea of guilty, of criminal possession of a weapon in the second degree (§ 265.03 [1] [b]). In both appeals, defendant contends that his waivers of the right to appeal are invalid and that the sentences are unduly harsh and severe. Even assuming, arguendo, that defendant’s waivers of the right to appeal from the judgments are invalid (see People v. Bisono, 36 N.Y.3d 1013, 1017-1018, 140 N.Y.S.3d 433, 164 N.E.3d 239 [2020]; People v. Montgomery, 204 A.D.3d 1439, 1440, 165 N.Y.S.3d 415 [4th Dept. 2022], lv denied 38 N.Y.3d 1072, 171 N.Y.S.3d 432, 191 N.E.3d 384 [2022]) and thus do not preclude our review of his challenges to the severity of his sentences (see People v. Viehdeffer, 189 A.D.3d 2143, 2144, 134 N.Y.S.3d 906 [4th Dept. 2020]; People v. Love, 181 A.D.3d 1193, 1193, 118 N.Y.S.3d 475 [4th Dept. 2020]), we conclude in each appeal that the sentence is not unduly harsh or severe.