People v Brisco

People v Brisco 2019 NY Slip Op 05556 Decided on July 10, 2019 Appellate Division, Second 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 July 10, 2019 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
REINALDO E. RIVERA, J.P.
SYLVIA O. HINDS-RADIX
VALERIE BRATHWAITE NELSON
ANGELA G. IANNACCI, JJ.
2017-07992
(Ind. No. 1351/16)

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

v

Frank Brisco, appellant.

Warren S. Landau, Cedarhurst, NY, for appellant.

Madeline Singas, District Attorney, Mineola, NY (Jason R. Richards and Mary Faldich of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Nassau County (Alan L. Honorof, J.), imposed June 27, 2017, upon his plea of guilty, on the grounds that the sentence is both illegal and excessive.

ORDERED that the sentence is affirmed.

The record demonstrates that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v Lopez, 6 NY3d 248, 254, 257). The defendant's valid waiver of his right to appeal precludes appellate review of his contention that the sentence imposed was excessive (see id. at 255-256).

A challenge to the legality of a sentence survives a valid waiver of the right to appeal (see id. at 255; People v Callahan, 80 NY2d 273, 280), and may be raised notwithstanding a plea of guilty (see People v Laureano, 87 NY2d 640, 643). However, contrary to the defendant's contention, the Supreme Court was authorized to impose consecutive sentences for the defendant's convictions of attempted burglary in the third degree and criminal mischief in the third degree because those crimes involved separate and distinct acts (see Penal Law § 70.25[2]; People v Laureano, 87 NY2d at 643).

RIVERA, J.P., HINDS-RADIX, BRATHWAITE NELSON and IANNACCI, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court