Opinion
843/19 KA 17-01753
02-05-2021
The PEOPLE of the State of New York, Respondent, v. Jeffrey R. MAGEE, Defendant-Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (JAMES M. SPECYAL OF COUNSEL), FOR DEFENDANT-APPELLANT. JOSEPH V. CARDONE, DISTRICT ATTORNEY, ALBION (SUSAN M. HOWARD OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (JAMES M. SPECYAL OF COUNSEL), FOR DEFENDANT-APPELLANT.
JOSEPH V. CARDONE, DISTRICT ATTORNEY, ALBION (SUSAN M. HOWARD OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CURRAN, WINSLOW, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
Now, upon remittitur from the Court of Appeals,
It is hereby ORDERED that, upon remittitur from the Court of Appeals, the judgment so appealed from is unanimously affirmed.
Memorandum: This case is before us upon remittitur from the Court of Appeals ( People v. Bisono , 36 N.Y.3d 1013, 140 N.Y.S.3d 433, 164 N.E.3d 239 [2020], revg People v. Magee , 175 A.D.3d 1824, 107 N.Y.S.3d 767 [4th Dept. 2019] ). We previously affirmed the judgment convicting defendant upon his plea of guilty of attempted criminal possession of a controlled substance in the third degree ( Penal Law §§ 110.00, 220.16 [1] ), concluding that defendant's waiver of the right to appeal was knowing, voluntary and intelligent and that the waiver encompassed his challenge to the severity of the sentence ( Magee , 175 A.D.3d at 1824-1825, 107 N.Y.S.3d 767 ). The Court of Appeals reversed, stating that, under the totality of the circumstances, the waiver of the right to appeal was invalid because "the rights encompassed by [the] appeal waiver were mischaracterized during the oral colloquy and in [the] written form[ ] executed by defendant, which indicated the waiver was an absolute bar to direct appeal, failed to signal that any issues survived the waiver and ... advised that the waiver encompassed ‘collateral relief on certain nonwaivable issues in both state and federal courts’ " ( Bisono , 36 N.Y.3d at 1017–18, 140 N.Y.S.3d 433, 164 N.E.3d 239 ). The Court of Appeals remitted the matter to this Court "for consideration of issues raised but not decided" previously ( id. at 1018, 140 N.Y.S.3d 433, 164 N.E.3d 239 ).
After review of defendant's contention upon remittitur, we conclude that the sentence is not unduly harsh or severe.