People v Olivier

People v Olivier 2015 NY Slip Op 08978 Decided on December 8, 2015 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 8, 2015
Tom, J.P., Friedman, Saxe, Gische, JJ.
16355 4339/11

[*1] The People of the State of New York, Respondent,

v

Ariel Olivier, Defendant-Appellant.

Robert S. Dean, Center for Appellate Litigation, New York (Bruce D. Austern of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Susan Gliner of counsel), for respondent.

Judgment, Supreme Court, New York County (Jill Konviser, J.), rendered April 30, 2013, convicting defendant, upon his plea of guilty, of conspiracy in the fourth degree and criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony drug offender previously convicted of a violent felony, to an aggregate term of eight years, unanimously affirmed.

The court properly adjudicated defendant a second felony drug offender whose prior felony conviction was a violent felony. Defendant's conviction of criminal possession of a weapon in the third degree pursuant to former Penal Law § 265.02(4) qualifies as a violent felony (see e.g. People v McGhee, 125 AD3d 537 [1st Dept 2015], lv granted 26 NY3d 968 [2015]; People v Thomas, 122 AD3d 489 [1st Dept 2014], lv denied 24 NY3d 1123 [2015]), and we decline to revisit our prior holdings on this issue.

Defendant made a valid waiver of his right to appeal (see People v Lopez, 6 NY3d 248, 256-257 [2006]), which forecloses review of his excessive sentence claim. Regardless of whether defendant validly waived his right to appeal, we perceive no basis for reducing the sentence.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 8, 2015

CLERK