Opinion
95 KA 15–01697
03-23-2018
The PEOPLE of the State of New York, Respondent, v. Leland JIRDON, Defendant–Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (TIMOTHY P. MURPHY OF COUNSEL), FOR DEFENDANT–APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. LOWRY OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (TIMOTHY P. MURPHY OF COUNSEL), FOR DEFENDANT–APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. LOWRY OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, NEMOYER, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
Memorandum:Defendant was convicted, upon his plea of guilty, of robbery in the second degree ( Penal Law § 160.10[1] ), and he now appeals from a resentence with respect to that conviction. Contrary to defendant's contention, the record establishes that he knowingly, voluntarily and intelligently waived the right to appeal (see People v. Porterfield, 107 A.D.3d 1478, 1478, 965 N.Y.S.2d 922 [4th Dept. 2013], lv denied 21 N.Y.3d 1076, 974 N.Y.S.2d 325, 997 N.E.2d 150 [2013] ; see generally People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ).
Although defendant validly waived his right to appeal during the plea proceeding, the waiver does not preclude his challenge to the resentence under the circumstances of this case. As a condition of his plea, defendant agreed to waive his right to appeal the conviction and sentence in exchange for the minimum lawful sentence for a second violent felony offender (see Penal Law §§ 70.04[3][b] ; 70.45[2] ). After it was determined that defendant did not qualify as a predicate felon, Supreme Court—contrary to the sentencing commitment to defendant at the time of the plea and waiver of the right to appeal—resentenced defendant to a sentence greater than the minimum lawful sentence (see §§ 70.02[3][b]; 70.45[2][f] ). Where, as here, the sentencing conditions under which a defendant agrees to waive the right to appeal change following the waiver, the defendant is not precluded by that waiver from challenging the severity of a subsequent resentence (see People v. Gray, 32 A.D.3d 1052, 1053, 820 N.Y.S.2d 858 [3d Dept. 2006], lv denied 7 N.Y.3d 902, 826 N.Y.S.2d 611, 860 N.E.2d 73 [2006] ; People v. Tausinger, 21 A.D.3d 1181, 1183, 801 N.Y.S.2d 106 [3d Dept. 2005] ; see also 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] ). Moreover, inasmuch as "defendant was not asked [during resentencing] if he further agreed to waive his right to pursue an appeal regarding the modified terms of his sentence, he is not foreclosed from requesting appellate review of ... the severity of the imposed sentence" ( People v. Johnson, 14 N.Y.3d 483, 487, 903 N.Y.S.2d 299, 929 N.E.2d 361 [2010] ). We also note that "defendant's release to parole supervision does not render his challenge moot because he ‘remains under the control of the Parole Board until his sentence has terminated’ " ( People v. Sebring, 111 A.D.3d 1346, 1347, 974 N.Y.S.2d 722 [4th Dept. 2013], lv denied 22 N.Y.3d 1159, 984 N.Y.S.2d 643, 7 N.E.3d 1131 [2014] ; see People v. Rowell, 5 A.D.3d 1073, 1074, 773 N.Y.S.2d 658 [4th Dept. 2004], lv denied 2 N.Y.3d 806, 781 N.Y.S.2d 305, 814 N.E.2d 477 [2004] ). We nevertheless conclude that defendant's sentence is not unduly harsh or severe.
It is hereby ORDERED that the resentence so appealed from is unanimously affirmed.