At page 1113 Waiver of appeal encompassing sentencing challenges5 citing cases“We reject that contention inasmuch as the sentencing transcript establishes that the court did not rely on any materially untrue assumptions or misinformation in the presentence report (cf.”
- People v. Whaley, 206 A.D.3d 1636 (N.Y. App. Div. 4th Dep't 2022).publishedThe sentencing transcript demonstrates that the court "did not rely on any materially untrue assumptions or misinformation" in the PSR when determining the appropriate sentence ( People v Dimmick , 53 AD3d 1113, 1113 [4th Dept 2008], lv de…
- People v. McKnight, 129 A.D.3d 1459 (N.Y. App. Div. 4th Dep't 2015).published We nevertheless address defendant’s contention in appeal No. 2 because the waiver of the right to appeal therein does not encompass his challenge to the court’s reliance on improper information at sentencing (see People v Gibbons, 101 AD3d…
- People v. Gibbons, 101 A.D.3d 1615 (N.Y. App. Div. 4th Dep't 2012).published To the extent that defendant’s contention survives her valid waiver of the right to appeal (see People v Dimmick, 53 AD3d 1113, 1113 [2008], lv denied 11 NY3d 831 [2008]; People v Agha, 43 AD3d 1383, 1383-1384 [2007]; see generally People…
At page 1114 Raising claims outside the record via motion1 citing caseAD3d 737, 739 [2004], lv denied 4 NY3d 887 [2005]). To the extent that the contention of defendant that he was denied effective assistance of counsel is not…
- People v. Lopez, 189 A.D.3d 2152 (N.Y. App. Div. 4th Dep't 2020).publishedTo the extent that defendant's contention survives the plea, it concerns matters outside the record that must be raised by way of a motion pursuant to CPL article 440 ( see People v Culver , 94 AD3d 1427, 1428 [4th Dept 2012], lv denied 19…
Other citing cases
- People v. Prescott, 66 A.D.3d 1357 (N.Y. App. Div. 4th Dep't 2009).published
v.
Chad A. Dimmick
Appeal from a judgment of the Niagara County Court (Sara S. Sperrazza, J.), rendered November 30, 2004. The judgment convicted defendant, upon his plea of guilty, of assault in the second degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of two counts of assault in the second degree (Penal Law § 120.05 [2]). Contrary to the contention of defendant, his waiver of the right to appeal was voluntarily, knowingly, and intelligently entered (see People v Lopez, 6 NY3d 248, 256 [2006]), and that valid waiver encompasses defendant’s challenge to the severity of the sentence (see People v Hidalgo, 91 NY2d 733, 737 [1998]). Defendant further contends that he was denied due process at sentencing because County Court relied on biased, inaccurate information in the presentence report. We reject that contention inasmuch as the sentencing transcript establishes that the court did not rely on any materially untrue assumptions or misinformation in the presentence report (cf. Townsend v Burke, 334 US 736, 740-741 [1948]; see generally People v Outley, 80 NY2d 702, 712 [1993]). Further, defendant took advantage of the opportunity that he was afforded to refute any aggravating factors in the presen-tence report that may have negatively influenced the court (see People v Perry, 36 NY2d 114, 119 [1975]; People v Harrington, 3[*1114] AD3d 737, 739 [2004], lv denied 4 NY3d 887 [2005]). To the extent that the contention of defendant that he was denied effective assistance of counsel is not forfeited by the plea and survives the waiver of the right to appeal (see People v Santos, 37 AD3d 1141 [2007], lv denied 8 NY3d 950 [2007]), it concerns matters outside the record and thus must be raised by way of a motion pursuant to CPL article 440 (see People v Leno, 21 AD3d 1399 [2005], lv denied 5 NY3d 883 [2005]; People v Michalski, 15 AD3d 918, 919 [2005], lv denied 5 NY3d 854, 6 NY3d 756 [2005] , cert denied 547 US 1077 [2006], reh denied 547 US 1176 [2006] ). Present—Hurlbutt, J.P., Smith, Lunn, Green and Gorski, JJ.