Opinion
931 KA 21-00991
12-22-2023
The PEOPLE of the State of New York, Respondent, v. Justin JENKINS, Defendant-Appellant. (Appeal No. 2.)
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ABIGAIL D. WHIPPLE OF COUNSEL), FOR DEFENDANT-APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DANIEL J. MATTLE OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ABIGAIL D. WHIPPLE OF COUNSEL), FOR DEFENDANT-APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DANIEL J. MATTLE OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., BANNISTER, MONTOUR, NOWAK, AND DELCONTE, 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 judgment convicting him, upon his plea of guilty, of six counts of robbery in the second degree ( Penal Law § 160.10 [2] [b] ) and, in appeal No. 2, he appeals from a resentence on that conviction. We note at the outset that, inasmuch as the sentence in appeal No. 1 was superseded by the resentence in appeal No. 2, the appeal from the judgment in appeal No. 1 insofar as it imposed sentence must be dismissed (see People v. Redar , 195 A.D.3d 1577, 1578, 145 N.Y.S.3d 915 [4th Dept. 2021], lv denied 37 N.Y.3d 1029, 153 N.Y.S.3d 431, 437, 175 N.E.3d 456, 462 [2021]; People v. Weathington [Appeal No. 2] , 141 A.D.3d 1173, 1173, 34 N.Y.S.3d 859 [4th Dept. 2016] ). We otherwise affirm the judgment in appeal No. 1 and affirm the resentence in appeal No. 2.
Defendant contends that the waiver of the right to appeal is invalid and that the resentence is unduly harsh and severe. Preliminarily, inasmuch as the sentencing conditions under which defendant agreed to waive the right to appeal did not change following the waiver obtained during the plea proceeding, his waiver of the right to appeal, if valid, would preclude his challenge to the severity of the resentence (see People v. Jones , 219 A.D.3d 1666, 1666, 195 N.Y.S.3d 841 [4th Dept. 2023] ; People v. McCarthy , 145 A.D.3d 1572, 1573, 44 N.Y.S.3d 667 [4th Dept. 2016] ; cf. People v. Fortner [Appeal No. 1] , 203 A.D.3d 1690, 1690, 162 N.Y.S.3d 814 [4th Dept. 2022], lv denied 38 N.Y.3d 1007, 168 N.Y.S.3d 366, 377, 188 N.E.3d 558, 569 [2022]; People v. Jirdon , 159 A.D.3d 1518, 1519, 70 N.Y.S.3d 423 [4th Dept. 2018] ; 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] ). Nonetheless, even assuming, arguendo, that defendant's waiver of the right to appeal is invalid (see generally People v. Thomas , 34 N.Y.3d 545, 560-563, 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] ) and thus does not preclude our review of his challenge to the severity of his resentence (see Jones , 219 A.D.3d at 1666, 195 N.Y.S.3d 841 ), we conclude that the resentence is not unduly harsh or severe.