Opinion
10-19-2017
The PEOPLE of the State of New York, Respondent, v. Joseph GIACCHI, Defendant–Appellant.
Seymour W. James, Jr., The Legal Aid Society, New York (Laura Boyd of Counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Jared Wolkowitz of Counsel), for respondent.
Seymour W. James, Jr., The Legal Aid Society, New York (Laura Boyd of Counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Jared Wolkowitz of Counsel), for respondent.
Defendant did not preserve his claim that the court failed to apprehend and exercise its discretion to depart from a promised sentence (see People v. McHale, 165 A.D.2d 800, 564 N.Y.S.2d 282 [1st Dept.1990], lv. denied 76 N.Y.2d 1023, 565 N.Y.S.2d 773, 566 N.E.2d 1178 [1990] ). While defendant characterizes his claim as one of unlawful sentencing, he is essentially arguing that a substantively lawful sentence was imposed by way of a defective procedure, and such claims require preservation ( People v. Samms, 95 N.Y.2d 52, 58, 710 N.Y.S.2d 310, 731 N.E.2d 1118 [2000] ). As a result of the lack of preservation, the court was never called upon to clarify its statement as to sentence, which is subject to several interpretations. We decline to review this argument in the interest of justice.
As an alternative holding, we find that to the extent the court may be viewed as expressing an erroneous belief that it lacked sentencing discretion after defendant's negotiated plea, remand for resentencing is unwarranted because the record fails to indicate any possible harm flowing from the court's alleged error, such as an indication of reservation about the fairness of the sentence to be imposed (see People v. Farrar, 52 N.Y.2d 302, 305, 437 N.Y.S.2d 961, 419 N.E.2d 864 [1981] ; People v. Diaz, 304 A.D.2d 468, 757 N.Y.S.2d 731 [1st Dept.2003], lv. denied 100 N.Y.2d 561, 763 N.Y.S.2d 818, 795 N.E.2d 44 [2003] ).
We do not find that defendant made a valid waiver of his right to appeal. In any event, we perceive no basis for reducing his sentence.
ACOSTA, P.J., FRIEDMAN, WEBBER, OING, and MOULTON, JJ., concur.