People v Barnwell-McClary

People v Barnwell-mcclary 2022 NY Slip Op 05630 Decided on October 7, 2022 Appellate Division, Fourth 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 October 7, 2022 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: LINDLEY, J.P., NEMOYER, CURRAN, WINSLOW, AND BANNISTER, JJ.
673 KA 21-00703

[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

v

CHANCE J. BARNWELL-MCCLARY, ALSO KNOWN AS CHANCE BARNWELL-MCCLARY, ALSO KNOWN AS CHANCE JEMIL BARNWELL-MCCLARY, ALSO KNOWN AS CHANCE B. MCCLARY, DEFENDANT-APPELLANT.

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ADAM AMIRAULT OF COUNSEL), FOR DEFENDANT-APPELLANT.

LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (ROBERT J. SHOEMAKER OF COUNSEL), FOR RESPONDENT.

Appeal from a judgment of the Genesee County Court (Charles N. Zambito, J.), rendered February 8, 2021. The judgment convicted defendant upon a plea of guilty of attempted criminal possession of a controlled substance in the third degree.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: On appeal from a judgment convicting him upon his plea of guilty of attempted criminal possession of a controlled substance in the third degree (Penal Law §§ 110.00, 220.16 [1]), defendant contends that his waiver of the right to appeal is invalid and that his sentence is unduly harsh and severe. "Even assuming, arguendo, that defendant's waiver of the right to appeal was not knowingly, voluntarily and intelligently entered" (People v Plantiko, 163 AD3d 1471, 1471 [4th Dept 2018]), we perceive no basis in the record to exercise our power to modify the sentence as a matter of discretion in the interest of justice (see CPL 470.15 [6] [b]), especially considering that defendant has already been released to parole supervision (see People v Alls, 187 AD3d 1515, 1515 [4th Dept 2020]).

Entered: October 7, 2022

Ann Dillon Flynn

Clerk of the Court