Opinion
529 KA 16–01122
04-27-2018
The PEOPLE of the State of New York, Respondent, v. Kenneth NEELY, Defendant–Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KRISTIN M. PREVE OF COUNSEL), FOR DEFENDANT–APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. LOWRY OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KRISTIN M. PREVE OF COUNSEL), FOR DEFENDANT–APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. LOWRY OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CARNI, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
Memorandum:
Defendant appeals from a judgment convicting him upon his plea of guilty of attempted rape in the first degree ( Penal Law §§ 110.00, 130.35[1] ) and sexual misconduct (§ 130.20[1] ). Contrary to defendant's contention, the record establishes that he knowingly, intelligently, and voluntarily waived his right to appeal (see People v. Woods, 126 A.D.3d 1543, 1543, 6 N.Y.S.3d 857 [4th Dept. 2015], lv denied 27 N.Y.3d 970, 36 N.Y.S.3d 631, 56 N.E.3d 911 [2016] ). Defendant further contends that the valid waiver of the right to appeal does not encompass his challenge to the severity of the sentence inasmuch as Supreme Court failed to advise him that he could be sentenced consecutively for his crimes. We reject that contention. The court could not have imposed the determinate sentence for attempted rape in the first degree to run consecutively to the definite sentence for sexual misconduct (see § 70.35; see generally People v. Abuhamra, 107 A.D.3d 1630, 1631, 968 N.Y.S.2d 294 [4th Dept. 2013], lv denied 22 N.Y.3d 1038, 981 N.Y.S.2d 372, 4 N.E.3d 384 [2013] ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.