Opinion
2018–04374 Ind.No. 1053/16
08-12-2020
The PEOPLE, etc., Respondent, v. CHUAN MU FU, Appellant.
Paul Skip Laisure, New York, N.Y. (Tammy E. Linn of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Sarah G. Pitts of counsel; Katherine E. Giordano on the memorandum), for respondent.
Paul Skip Laisure, New York, N.Y. (Tammy E. Linn of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Sarah G. Pitts of counsel; Katherine E. Giordano on the memorandum), for respondent.
REINALDO E. RIVERA, J.P., JOSEPH J. MALTESE, BETSY BARROS, VALERIE BRATHWAITE NELSON, ANGELA G. IANNACCI, JJ.
DECISION & ORDER Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Kings County (William Miller, J.), imposed February 7, 2017, upon his plea of guilty, on the ground that the sentence was excessive.
ORDERED that the sentence is affirmed.
During plea bargaining, the People offered the defendant a sentence promise of 10 years' incarceration to be followed by 5 years of postrelease supervision in exchange for the defendant's plea of guilty to assault in the first degree, which was the top count in the indictment, and the defendant's execution of a waiver of the right to appeal. The defendant rejected the People's offer. The Supreme Court then offered to sentence the defendant to 7 years' incarceration to be followed by 5 years of postrelease supervision in exchange for, inter alia, the defendant's plea of guilty to assault in the first degree and his execution of a waiver of the right to appeal. The defendant accepted the court's sentence promise and pleaded guilty to assault in the first degree. The defendant's plea of guilty and sentence were entered over the People's objection.
Since the People were not party to any plea bargain in which the defendant waived the right to appeal, and since the Supreme Court reached beyond its interest in determining an appropriate sentence by extracting from the defendant a waiver of the right to appeal, the defendant's purported waiver of the right to appeal is unenforceable (see People v. Sutton, 184 A.D.3d 236, 125 N.Y.S.3d 739 [2d Dept.] ; see also Penal Law § 1.05 ; People v. McConnell, 49 N.Y.2d 340, 346, 425 N.Y.S.2d 794, 402 N.E.2d 133 ; see generally Garza v. Idaho, ––– U.S. ––––, 139 S.Ct. 738, 203 L.Ed.2d 77 ; People v. Seaberg, 74 N.Y.2d 1, 7, 543 N.Y.S.2d 968, 541 N.E.2d 1022 ; People v. Farrar, 52 N.Y.2d 302, 305–306, 437 N.Y.S.2d 961, 419 N.E.2d 864 ).
Nevertheless, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
RIVERA, J.P., MALTESE, BARROS, BRATHWAITE NELSON and IANNACCI, JJ., concur.