New York Appellate Division Reports
PEOPLE v. BOSWELL, KA 06-00533 [4th Dept 12-22-2006] 2006 NY Slip Op 09816 PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF-RESPONDENT, v. CHRISTOPHER BOSWELL, ALSO KNOWN AS “C,” DEFENDANT-APPELLANT. KA 06-00533. Appellate Division of the Supreme Court of New York, Fourth Department. Decided on December 22, 2006.
Appeal from a judgment of the Wayne County Court (Dennis M. Kehoe, J.), rendered November 23, 2005. The judgment convicted defendant, upon his plea of guilty, of attempted criminal sale of a controlled substance in the third degree.
RONALD C. VALENTINE, PUBLIC DEFENDER, LYONS (DAVID M. PARKS OF COUNSEL), FOR DEFENDANT-APPELLANT.
RICHARD M. HEALY, DISTRICT ATTORNEY, LYONS (JACQUELINE MC CORMICK OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: SCUDDER, P.J., HURLBUTT, GORSKI, AND MARTOCHE, JJ.
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting
him, upon his plea of guilty, of attempted criminal sale of
a controlled substance in the third degree (Penal Law
§§ 110.00, 220.39 [1]). We agree with
defendant that his waiver of the right to appeal is invalid
with respect to any challenge to the sentence. County Court
expressly excluded any challenge to the sentence from the
scope of the waiver of the right to appeal in the event
that defendant was sentenced to a term of incarceration in
excess of one year and, upon reviewing the presentence
report, the court sentenced defendant to a determinate term
of incarceration of 2Ë? years. Nevertheless, we conclude
that the sentence is not unduly harsh or severe.
Defendant’s further contention with respect to the factual
sufficiency of the plea allocution does not survive the
waiver of the right to appeal (see People v Spivey, 9 AD3d
886, lv denied 3 NY3d 712).