Opinion
2019–00385 S.C.I. No. 1494/18
05-06-2020
The PEOPLE, etc., Respondent, v. Joseph S. SIMONE, Appellant.
Paul Skip Laisure, New York, N.Y. (Lynn W.L. Fahey of counsel), for appellant. James E. Johnson, Corporation Counsel, New York, N.Y. (Devin Slack and Barbara Graves–Poller of counsel), for respondent.
Paul Skip Laisure, New York, N.Y. (Lynn W.L. Fahey of counsel), for appellant.
James E. Johnson, Corporation Counsel, New York, N.Y. (Devin Slack and Barbara Graves–Poller of counsel), for respondent.
WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, ROBERT J. MILLER, COLLEEN D. DUFFY, HECTOR D. LASALLE, JJ.
DECISION & ORDER
ORDERED that the amended sentence is affirmed.
The defendant pleaded guilty to attempted robbery in the third degree in return for a split sentence of imprisonment and probation (see Penal Law § 60.01[2][d] ). The defendant successfully completed the term of imprisonment, but violated conditions of his probation. After a hearing, the Supreme Court revoked the defendant's split sentence and imposed a term of imprisonment. The defendant appeals from the amended sentence on the ground that it was excessive.
The defendant's waiver of his right to appeal, given at the time of his plea of guilty, does not preclude appellate review of his challenge to the severity of the amended sentence. There is nothing on the record to show that the defendant, at the time of the purported appeal waiver, was aware of the maximum legal sentence that could be imposed if he failed to conform to the conditions of probation. Under these circumstances, the record does not reflect that the defendant knowingly and intelligently waived his right to challenge the severity of the amended sentence which, at that point, "had not yet been declared by the court" ( People v. Maracle, 19 N.Y.3d 925, 928, 950 N.Y.S.2d 498, 973 N.E.2d 1272 ; see People v. Batiste, 181 A.D.3d 816, 118 N.Y.S.3d 447 ; People v. Dym, 175 A.D.3d 1553, 1554, 106 N.Y.S.3d 899 ; People v. Juwan L.D. , 167 A.D.3d 645, 646, 86 N.Y.S.3d 907 ; People v. Yodice, 153 A.D.3d 1373, 1373, 59 N.Y.S.3d 898 ).
Nevertheless, the amended sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
MASTRO, J.P., LEVENTHAL, MILLER, DUFFY and LASALLE, JJ., concur.