Opinion
300 KA 18-02327
03-19-2021
The PEOPLE of the State of New York, Respondent, v. Ryan C. BISHOP, Defendant-Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALLYSON L. KEHL-WIERZBOWSKI OF COUNSEL), FOR DEFENDANT-APPELLANT. LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (KAITLYNN E. SCHMIT OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALLYSON L. KEHL-WIERZBOWSKI OF COUNSEL), FOR DEFENDANT-APPELLANT.
LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (KAITLYNN E. SCHMIT OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CARNI, LINDLEY, TROUTMAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant was convicted upon his plea of guilty of driving while intoxicated as a class E felony ( Vehicle and Traffic Law §§ 1192 [3] ; 1193 [1] [c] [i] [A]) and was sentenced to a period of probation. Defendant now appeals from a judgment resentencing him, upon his admission to a violation of probation, to six months in jail and a continuation of the same period of probation with additional terms and conditions.
Contrary to defendant's contention, "the Court of Appeals has rejected the assertion that waivers of the right to appeal should be invalid per se" ( People v. Viehdeffer , 189 A.D.3d 2143, 2144, 134 N.Y.S.3d 906 [4th Dept. 2020] ; see People v. Thomas , 34 N.Y.3d 545, 557-558, 558 n. 1, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied ––– U.S. ––––, 140 S. Ct. 2634, 206 L.Ed.2d 512 [2020] ). Nevertheless, even assuming, arguendo, that defendant's waiver of the right to appeal was invalid ( see People v. Bisono , 36 N.Y.3d 1013, ––– N.Y.S.3d ––––, ––– N.E.3d –––– [2020]; Thomas , 34 N.Y.3d at 565-566, 122 N.Y.S.3d 226, 144 N.E.3d 970 ) and thus does not preclude our review of his challenge to the severity of his sentence ( see People v. Alls , 187 A.D.3d 1515, 1515, 129 N.Y.S.3d 881 [4th Dept. 2020] ), we conclude that the sentence is not unduly harsh or severe.