Opinion
387/18 KA 16–00295
12-20-2019
The PEOPLE of the State of New York, Respondent, v. Nicole L. GREEN, Also Known as Nicole Green, Defendant–Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (JAMES M. SPECYAL OF COUNSEL), FOR DEFENDANT–APPELLANT. LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (SHIRLEY A. GORMAN OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (JAMES M. SPECYAL OF COUNSEL), FOR DEFENDANT–APPELLANT.
LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (SHIRLEY A. GORMAN OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CENTRA, NEMOYER, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER Now, upon remittitur from the Court of Appeals,
It is hereby ORDERED that, upon remittitur from the Court of Appeals, the judgment so appealed from is unanimously affirmed.
Memorandum: This case is before us upon remittitur from the Court of Appeals ( People v. Thomas, ––– N.Y.3d ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2019 N.Y. Slip Op. 08545 [2019], revg People v. Green, 160 A.D.3d 1422, 72 N.Y.S.3d 870 [4th Dept. 2018] ). We previously affirmed the judgment convicting defendant upon her plea of guilty of attempted burglary in the second degree ( Penal Law §§ 110.00, 140.25[2] ), concluding that defendant's waiver of the right to appeal was knowing, voluntary and intelligent, and that the waiver encompassed her challenge to the severity of the sentence ( Green, 160 A.D.3d at 1422–1423, 72 N.Y.S.3d 870 ). The Court of Appeals reversed, stating that it "cannot conclude that the appeal waiver[ ] on the record[ ] in Green [was] knowingly or voluntarily made in the face of erroneous advisements warning of absolute bars to the pursuit of all potential remedies, including those affording collateral relief on certain nonwaivable issues in both state and federal courts" ( Thomas , ––– N.Y.3d ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2019 N.Y. Slip Op. 08545, *8 ). The Court of Appeals remitted the matter to this Court "for a determination of all issues raised but not determined" previously ( id. , ––– N.Y.3d ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2019 N.Y. Slip Op. 08545, *8 ).
After review of defendant's contention upon remittitur, we conclude that the sentence is not unduly harsh or severe.