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People v. Ramirez

Supreme Court, Appellate Division, First Department, New York.
Sep 27, 2018
164 A.D.3d 1188 (N.Y. App. Div. 2018)

Opinion

7169 Ind. 5024N/14

09-27-2018

The PEOPLE of the State of New York, Respondent, v. Benjamin RAMIREZ, Defendant–Appellant.

Robert S. Dean, Center for Appellate Litigation, New York (Jody Ratner of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Andrew E. Seewald of counsel), for respondent.


Robert S. Dean, Center for Appellate Litigation, New York (Jody Ratner of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Andrew E. Seewald of counsel), for respondent.

Renwick, J.P., Gische, Mazzarelli, Kern, Moulton, JJ.

Judgment, Supreme Court, New York County (Daniel P. Conviser, J.), rendered November 17, 2015, as amended January 30, 2018, convicting defendant, upon his plea of guilty, of criminal possession of a controlled substance in the third degree and criminal possession of a weapon in the second degree, and sentencing him to concurrent terms of five years, unanimously affirmed.

Defendant made a valid waiver of his right to appeal. The court's thorough colloquy with defendant satisfied the requirements for a valid waiver (see People v. Bryant, 28 N.Y.3d 1094, 68 N.E.3d 60 [2016] ). The court did not misstate the scope of the right being waived, or conflate it with the rights automatically forfeited by pleading guilty, and the record does not establish anything defective about the waiver. This waiver forecloses defendant's claims that the sentencing court misperceived its discretion and that the sentence is excessive (see People v. Watson, 155 A.D.3d 553, 64 N.Y.S.3d 544 [1st Dept. 2017], lv denied 30 N.Y.3d 1121, 77 N.Y.S.3d 346, 101 N.E.3d 987 [2018] ).

Regardless of whether defendant made a valid waiver of his right to appeal, he did not preserve his claim that the court failed to exercise its sentencing discretion (see id. ), and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits. The court expressly stated that it was weighing the relevant sentencing considerations, including, but not limited to, the People's position, and that it was exercising its independent discretion.

We also perceive no basis for reducing the sentence.


Summaries of

People v. Ramirez

Supreme Court, Appellate Division, First Department, New York.
Sep 27, 2018
164 A.D.3d 1188 (N.Y. App. Div. 2018)
Case details for

People v. Ramirez

Case Details

Full title:The People of the State of New York, Respondent, v. Benjamin Ramirez…

Court:Supreme Court, Appellate Division, First Department, New York.

Date published: Sep 27, 2018

Citations

164 A.D.3d 1188 (N.Y. App. Div. 2018)
164 A.D.3d 1188
2018 N.Y. Slip Op. 6324