Opinion
11-28-2017
The PEOPLE of the State of New York, Respondent, v. Hector WATSON, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Anokhi A. Shah of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Frank Glaser of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Anokhi A. Shah of counsel), for appellant.Cyrus R. Vance, Jr., District Attorney, New York (Frank Glaser of counsel), for respondent.
Judgment, Supreme Court, New York County (Juan M. Merchan, J.), rendered January 8, 2016, convicting defendant, upon his plea of guilty, of grand larceny in the fourth degree, and sentencing him, as a second felony offender, to a term of two to four years, unanimously affirmed.
Defendant made a valid waiver of his right to appeal, which forecloses his claims that the sentence court misperceived its discretion, and that the sentence was excessive. The oral colloquy, in which the court separated the right to appeal from the rights automatically given up by pleading guilty, along with the written waiver, satisfied the requirements for a valid waiver (see People v. Bryant, 28 N.Y.3d 1094, 45 N.Y.S.3d 335, 68 N.E.3d 60 [2016] ).
Regardless of whether defendant made a valid waiver of his right to appeal, he failed to preserve his claim that the court failed to exercise its sentencing discretion (see People v. Fishman, 14 A.D.3d 411, 787 N.Y.S.2d 866 [1st Dept.2005], lv. denied 4 N.Y.3d 853, 797 N.Y.S.2d 427, 830 N.E.2d 326 [2005] ), and we decline to review it in the interest of justice. As an alternative holding, we also reject it on the merits. Even if the court mistakenly believed that it had no discretion to impose a lower sentence than called for under the plea agreement, there would be no need to remand for resentencing because the court expressed no reservations about that sentence (see id.). On the contrary, the court stated that it was not "inclined" to impose a lower sentence in any event.
We perceive no basis for reducing the sentence.
TOM, J.P., FRIEDMAN, ANDRIAS, GESMER, JJ., concur.