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People v. Hoke

Supreme Court, Appellate Division, Fourth Department, New York.
Dec 21, 2018
167 A.D.3d 1549 (N.Y. App. Div. 2018)

Opinion

1289 KA 15–01128

12-21-2018

The PEOPLE of the State of New York, Respondent, v. Leslie W. HOKE, Defendant–Appellant.

LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA, D.J. & J.A. CIRANDO, ESQS., SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT–APPELLANT. JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.


LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA, D.J. & J.A. CIRANDO, ESQS., SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT–APPELLANT.

JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.

PRESENT: WHALEN, P.J., PERADOTTO, CARNI, AND NEMOYER, JJ.

MEMORANDUM AND ORDERIt is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of, inter alia, criminal sexual act in the first degree ( Penal Law § 130.50[1] ) and criminal sexual act in the third degree (§ 130.40[2] ). Defendant validly waived his right to appeal (see People v. Robinson, 112 A.D.3d 1349, 1349, 977 N.Y.S.2d 529 [4th Dept. 2013], lv denied 23 N.Y.3d 1042, 993 N.Y.S.2d 255, 17 N.E.3d 510 [2014] ; People v. Hinkson, 59 A.D.3d 934, 935, 873 N.Y.S.2d 398 [4th Dept. 2009], lv denied 12 N.Y.3d 817, 881 N.Y.S.2d 24, 908 N.E.2d 932 [2009] ; see also People v. King, 151 A.D.3d 1651, 1652, 56 N.Y.S.3d 398 [4th Dept. 2017], lv denied 30 N.Y.3d 951, 67 N.Y.S.3d 134, 89 N.E.3d 524 [2017] ), and that waiver encompasses his challenge to the severity of his sentence (see People v. Lopez, 6 N.Y.3d 248, 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ). Although defendant's remaining contentions survive his valid appeal waiver (see People v. Sears, 158 A.D.3d 1293, 1294, 68 N.Y.S.3d 370 [4th Dept. 2018], lv denied 31 N.Y.3d 1087, 79 N.Y.S.3d 108, 103 N.E.3d 1255 [2018] ; People v. Copes, 145 A.D.3d 1639, 1639, 44 N.Y.S.3d 833 [4th Dept. 2016], lv denied 28 N.Y.3d 1182, 52 N.Y.S.3d 709, 75 N.E.3d 101 [2017] ), they are nevertheless unpreserved and we decline to review them as a matter of discretion in the interest of justice (see Sears, 158 A.D.3d at 1294, 68 N.Y.S.3d 370 ; People v. Wilson, 289 A.D.2d 1088, 1088, 735 N.Y.S.2d 463 [4th Dept. 2001], lv denied 98 N.Y.2d 656, 745 N.Y.S.2d 516, 772 N.E.2d 619 [2002] ).

As defendant correctly notes, County Court erroneously stated, prior to imposing sentence, that he had pleaded guilty to criminal sexual act in the third degree under count 32 of the indictment. In fact, defendant had pleaded guilty to criminal sexual act in the first degree under that count. Nevertheless, when viewed in context, it is apparent that the court merely misspoke and actually intended to and did impose sentence for the appropriate crime consistent with the negotiated term. Thus, as the Second Department recognized under these exact circumstances, "a remittitur for what must necessarily be reimposition of the same sentence would serve no purpose whatsoever" ( People v. Tarrant, 109 A.D.2d 763, 764, 486 N.Y.S.2d 79 [2d Dept. 1985] ; see also People v. Martinez, 243 A.D.2d 923, 925, 663 N.Y.S.2d 398 [3d Dept. 1997] ).

Finally, the uniform sentence and commitment form must be amended to state that the sentence on count 32 runs concurrently with the sentences on count 1 and count 8, and to reflect the correct offense dates as specified in counts 1, 8, and 32 of the indictment (see People v. Southard, 163 A.D.3d 1461, 1462, 76 N.Y.S.3d 869 [4th Dept. 2018] ).


Summaries of

People v. Hoke

Supreme Court, Appellate Division, Fourth Department, New York.
Dec 21, 2018
167 A.D.3d 1549 (N.Y. App. Div. 2018)
Case details for

People v. Hoke

Case Details

Full title:The PEOPLE of the State of New York, Respondent, v. Leslie W. HOKE…

Court:Supreme Court, Appellate Division, Fourth Department, New York.

Date published: Dec 21, 2018

Citations

167 A.D.3d 1549 (N.Y. App. Div. 2018)
90 N.Y.S.3d 452

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