Opinion
No. 240 KA 19-01494
03-24-2023
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. MICHAEL. COLEY, DEFENDANT-APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ADAM AMIRAULT OF COUNSEL), FOR DEFENDANT-APPELLANT. KEVIN T. FINNELL, DISTRICT ATTORNEY, BATAVIA (WILLIAM G. ZICKL OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ADAM AMIRAULT OF COUNSEL), FOR DEFENDANT-APPELLANT.
KEVIN T. FINNELL, DISTRICT ATTORNEY, BATAVIA (WILLIAM G. ZICKL OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., CURRAN, BANNISTER, AND MONTOUR, JJ.
Appeal from a judgment of the Genesee County Court (Charles N. Zambito, J.), rendered June 4, 2018. The judgment convicted defendant upon his plea of guilty of attempted robbery in the first degree.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of attempted robbery in the first degree (Penal Law
§ 110.00, 160.15 [4]), defendant contends that his waiver of the right to appeal is invalid and that his sentence is unduly harsh and severe. Even assuming, arguendo, that defendant's waiver of the right to appeal was not knowingly, voluntarily and intelligently entered (see People v Terry, 203 A.D.3d 1578, 1578 [4th Dept 2022], lv denied 38 N.Y.3d 1010 [2022]), we perceive no basis in the record to exercise our power to modify the negotiated sentence as a matter of discretion in the interest of justice (see CPL 470.15 [6] [b]).
We note, however, that the certificate of conviction erroneously states that defendant was convicted of attempted burglary in the first degree, and it must be amended to reflect that defendant was convicted of attempted robbery in the first degree (see generally People v Thurston, 208 A.D.3d 1629, 1630 [4th Dept 2022]).