Opinion
242 KA 21-00635
03-18-2022
The PEOPLE of the State of New York, Respondent, v. Darryl FORTNER, Defendant-Appellant. (Appeal No. 1.)
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CENTRA, PERADOTTO, LINDLEY, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the resentence so appealed from is unanimously affirmed.
Memorandum: In appeal No. 1, defendant appeals from a resentence on his conviction, upon his plea of guilty, of robbery in the first degree ( Penal Law § 160.15 [4] ) and menacing in the second degree (§ 120.14 [1]). In appeal No. 2, defendant appeals from a resentence on his conviction, upon his plea of guilty in the same plea proceeding, of attempted robbery in the first degree ( §§ 110.00, 160.15 [4] ). Although defendant validly waived his right to appeal at the plea proceeding (see generally People v. Lopez , 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ), that waiver does not preclude him from challenging the sentences imposed upon resentencing (see People v. Allen , 97 A.D.3d 1164, 1164, 947 N.Y.S.2d 354 [4th Dept. 2012], lv denied 19 N.Y.3d 994, 951 N.Y.S.2d 470, 975 N.E.2d 916 [2012] ; People v. Gray , 32 A.D.3d 1052, 1053, 820 N.Y.S.2d 858 [3d Dept. 2006], lv denied 7 N.Y.3d 902, 826 N.Y.S.2d 611, 860 N.E.2d 73 [2006] ; see also People v. Jirdon , 159 A.D.3d 1518, 1519, 70 N.Y.S.3d 423 [4th Dept. 2018] ). We nevertheless conclude in each appeal that the resentence is not unduly harsh or severe.