Opinion
2012-08118, Ind. No. 278/11.
10-21-2015
The PEOPLE, etc., respondent, v. Baydr TAYLOR, appellant.
Lynn W.L. Fahey, New York, N.Y. (Erica Horwitz of counsel), for appellant. Daniel L. Master, Jr., Acting District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Erica Horwitz of counsel), for appellant.
Daniel L. Master, Jr., Acting District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart of counsel), for respondent.
Opinion Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Rienzi, J.), rendered May 3, 2012, convicting him of attempted murder in the second degree and criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's purported waiver of his right to appeal was invalid (see People v. Sanders, 25 N.Y.3d 337, 340, 12 N.Y.S.3d 593, 34 N.E.3d 344 ; People v. Bradshaw, 18 N.Y.3d 257, 265, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; People v. Lopez, 6 N.Y.3d 248, 256–257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Avendano, 119 A.D.3d 597, 598, 987 N.Y.S.2d 892 ; People v. Floyd, 112 A.D.3d 963, 976 N.Y.S.2d 894 ; People v. Jones, 106 A.D.3d 1106, 965 N.Y.S.2d 729 ; People v. Sommerville, 104 A.D.3d 880, 960 N.Y.S.2d 661 ) and, thus, does not preclude review of his excessive sentence claim. However, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
The defendant's contention that he was improperly sentenced as a second felony offender is unpreserved for appellate review since he did not contest or controvert his status as a second felony offender when he had the opportunity to do so at the sentencing hearing (see CPL 470.05[2] ; People v. Samms, 95 N.Y.2d 52, 57, 710 N.Y.S.2d 310, 731 N.E.2d 1118 ; People v. Smith, 73 N.Y.2d 961, 962–963, 540 N.Y.S.2d 987, 538 N.E.2d 339 ; People v. Moshier, 110 A.D.3d 832, 833, 972 N.Y.S.2d 675 ; People v. Simmons, 73 A.D.3d 1095, 1096, 900 N.Y.S.2d 678 ; People v. Delston, 30 A.D.3d 536, 818 N.Y.S.2d 223 ).
The defendant's remaining contention is without merit.
RIVERA, J.P., BALKIN, DICKERSON and COHEN, JJ., concur.