Opinion
597 KA 20-00328
09-29-2023
The PEOPLE of the State of New York, Respondent, v. Brandon JONES, Defendant-Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (NICHOLAS P. DIFONZO 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 (NICHOLAS P. DIFONZO OF COUNSEL), FOR DEFENDANT-APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DANIEL J. MATTLE OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CURRAN, MONTOUR, OGDEN, AND DELCONTE, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the resentence so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of manslaughter in the first degree ( Penal Law § 125.20 [1] ). Although the notice of appeal is taken from the judgment rendered January 31, 2020, and not the resentence on September 1, 2020, we exercise our discretion to treat the appeal as taken from the resentence (see CPL 460.10 [6] ; People v. Hennigan [appeal No. 1], 145 A.D.3d 1528, 1528, 42 N.Y.S.3d 917 [4th Dept. 2016], lv denied 29 N.Y.3d 998, 57 N.Y.S.3d 719, 80 N.E.3d 412 [2017]). Assuming, arguendo, that 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] ; People v. Stephens , 189 A.D.3d 2142, 2142, 134 N.Y.S.3d 875 [4th Dept. 2020] ; People v. Alls , 187 A.D.3d 1515, 1515, 129 N.Y.S.3d 881 [4th Dept. 2020] ) and thus does not preclude our review of his challenge to the severity of his resentence (see Stephens , 189 A.D.3d at 2142, 134 N.Y.S.3d 875 ; Alls , 187 A.D.3d at 1515, 129 N.Y.S.3d 881 ), we conclude that the resentence is not unduly harsh or severe.