Opinion
13254-13254A Ind. Nos. 3394/13, 882/14, 1128/14, 1273/14 Case No. 2019-14
03-04-2021
Robert S. Dean, Center for Appellate Litigation, New York (Jody Ratner of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (John T. Komondorea of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Jody Ratner of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (John T. Komondorea of counsel), for respondent.
Kern, J.P., Oing, Singh, Moulton, JJ.
Judgments, Supreme Court, Bronx County (William Mogulescu, J.), rendered March 16, 2015, convicting defendant, upon his pleas of guilty, of criminal mischief in the second and third degrees and two counts of promoting prison contraband in the first degree, and sentencing him to an aggregate term of 1 to 4 years, unanimously affirmed.
Defendant made a valid waiver of his right to appeal foreclosing appellate review of the issues raised herein (see People v. Thomas, 34 N.Y.3d 545, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied 589 U.S. ––––, 140 S.Ct. 2634, 206 L.Ed.2d 512 [2020] ). Regardless of whether defendant validly waived his right to appeal, we perceive no basis for reducing the sentence or remanding for a new sentencing proceeding. Defendant did not preserve his claim that he could not be sentenced because the Department of Probation did not interview him in preparing the presentence report, and the record does not establish that defense counsel attempted to make that particular claim. As an alternative holding, we find that a new sentencing proceeding is not warranted, because a presentence interview is not a legal requirement ( People v. Serrano, 158 A.D.3d 467, 468, 70 N.Y.S.3d 494 [1st Dept. 2018], lv denied 31 N.Y.3d 1087, 79 N.Y.S.3d 109, 103 N.E.3d 1256 [2018] ), because defendant's sentence was the result of a negotiated plea, and because the sentencing court had ample information before it regarding defendant's social, psychiatric, substance abuse and juvenile offense history.