People v Boswell

People v Boswell 2006 NY Slip Op 09816 [35 AD3d 1218] December 22, 2006 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 14, 2007

The People of the State of New York, Respondent, v Christopher Boswell, Also Known as "C", Appellant.

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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.

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 2½ 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 [2004], lv denied 3 NY3d 712 [2004]). Present—Scudder, P.J., Hurlbutt, Gorski and Martoche, JJ.