Opinion
852 KA 18-02402
11-18-2022
The PEOPLE of the State of New York, Respondent, v. Adam J. HETTIG, Defendant-Appellant.
JILL L. PAPERNO, ACTING PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
JILL L. PAPERNO, ACTING PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, CURRAN, WINSLOW, AND MONTOUR, JJ.
MEMORANDUM AND ORDER
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 robbery in the first degree ( Penal Law § 160.15 [3] ), defendant contends that his waiver of the right to appeal is invalid and that his sentence is unduly harsh and severe. As the People correctly concede, defendant's waiver of the right to appeal is invalid (see People v. Thomas , 34 N.Y.3d 545, 564-566, 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] ). The People, relying on ( People v. McGovern, 265 A.D.2d 881, 696 N.Y.S.2d 730 [4th Dept. 1999], lv denied 94 N.Y.2d 882, 705 N.Y.S.2d 14, 726 N.E.2d 491 [2000] ), assert that, because defendant was sentenced in accordance with the plea agreement, he should be bound by its terms and "not later be heard to complain that he received what he bargained for" ( People v. Dixon , 38 A.D.3d 1242, 1242, 834 N.Y.S.2d 903 [4th Dept. 2007] [internal quotation marks omitted]). The fact that defendant "received the bargained-for sentence[, however,] does not preclude him from seeking our discretionary review of his sentence pursuant to CPL 470.15 (6) (b)" ( People v. Garcia-Gual , 67 A.D.3d 1356, 1356, 887 N.Y.S.2d 914 [4th Dept. 2009], lv denied 14 N.Y.3d 771, 898 N.Y.S.2d 102, 925 N.E.2d 107 [2010] ; see generally People v. Pollenz , 67 N.Y.2d 264, 267-268, 502 N.Y.S.2d 417, 493 N.E.2d 541 [1986] ; People v. Thompson , 60 N.Y.2d 513, 519-520, 470 N.Y.S.2d 551, 458 N.E.2d 1228 [1983] ). We stated in Garcia-Gual that McGovern and other prior decisions of this Court "are not to be followed" to the extent that "they suggest a rule to the contrary" ( Garcia-Gual , 67 A.D.3d at 1356, 887 N.Y.S.2d 914 ). Nevertheless, we conclude that the sentence is not unduly harsh or severe.