green
Positive treatment
Issue: sentence survives waiverNY ↗
Issue: significance waiverNY ↗
14.5 score
Treatment trajectory · 2003 → 2026 · click a year to view as-of
2003
2014
2026
Top citers, strongest first. 14 distinct citers.
How cited ↗
discussed
Cited as authority (rule)
People v. Olmstead
Initially, we note that defendant’s challenge to the fine survives his waiver of the right to appeal inasmuch as it implicates his “right to be sentenced as provided by law” (People v Fuller, 57 NY2d 152, 156 [1982]; see People v Figueroa, 17 AD3d 1130, 1131 [2005], lv denied 5 NY3d 788 [2005]; People v Fehr, 303 AD2d 1039,1040 [2003], lv denied 100 NY2d 538 [2003]; People v Moore, 212 AD2d 1062, 1062 [1995]).
discussed
Cited as authority (rule)
People v. Olmstead
Initially, we note that defendant’s challenge to the fine survives his waiver of the right to appeal inasmuch as it implicates his “right to be sentenced as provided by law” (People v Fuller, 57 NY2d 152, 156 [1982]; see People v Figueroa, 17 AD3d 1130, 1131 [2005], lv denied 5 NY3d 788 [2005]; People v Fehr, 303 AD2d 1039,1040 [2003], lv denied 100 NY2d 538 [2003]; People v Moore, 212 AD2d 1062, 1062 [1995]).
discussed
Cited as authority (rule)
People v. Bills
The court’s statement, “I will have to fine you,” reflects “the court’s misapprehension that it had no ability to exercise its discretion in determining whether to impose a fine” (People v Kropp, 49 AD3d 1339, 1340 [2008] [internal quotation marks omitted]; see Figueroa, 17 AD3d at 1131 ; People v Fehr, 303 AD2d 1039, 1040 [2003], lv denied 100 NY2d 538 [2003]).
discussed
Cited as authority (rule)
People v. Bills
The court’s statement, “I will have to fine you,” reflects “the court’s misapprehension that it had no ability to exercise its discretion in determining whether to impose a fine” (People v Kropp, 49 AD3d 1339, 1340 [2008] [internal quotation marks omitted]; see Figueroa, 17 AD3d at 1131 ; People v Fehr, 303 AD2d 1039, 1040 [2003], lv denied 100 NY2d 538 [2003]).
discussed
Cited as authority (rule)
People v. Anderson
Therefore, defendant’s claim regarding the imposition of this part of the sentence survives the waiver of his right to appeal (see People v Callahan, 80 NY2d 273, 280 [1992]; People v Greathouse, 62 AD3d 1212, 1213 [2009], lv denied 13 NY3d 744 [2009]; People v Figueroa, 17 AD3d 1130, 1130 [2005], lv denied 5 NY3d 788 [2005]), and we agree with defendant that, even though he did not seek to vacate his plea, the provision of his sentence imposing a fine must be vacated (see People v Figueroa, 17 AD3d at 1130 ; People v Fehr, 303 AD2d 1039, 1040 [2003], lv denied 100 NY2d 538 [2003]; People v …
discussed
Cited as authority (rule)
People v. Anderson
Therefore, defendant’s claim regarding the imposition of this part of the sentence survives the waiver of his right to appeal (see People v Callahan, 80 NY2d 273, 280 [1992]; People v Greathouse, 62 AD3d 1212, 1213 [2009], lv denied 13 NY3d 744 [2009]; People v Figueroa, 17 AD3d 1130, 1130 [2005], lv denied 5 NY3d 788 [2005]), and we agree with defendant that, even though he did not seek to vacate his plea, the provision of his sentence imposing a fine must be vacated (see People v Figueroa, 17 AD3d at 1130 ; People v Fehr, 303 AD2d 1039, 1040 [2003], lv denied 100 NY2d 538 [2003]; People v …
discussed
Cited as authority (rule)
People v. Kropp
“We are constrained, however, to vacate the sentence” imposed for aggravated unlicensed operation of a motor vehicle in the third degree (People v John, 288 AD2d 848, 850 [2001], lv denied 97 NY2d 705 [2002]; see People v Figueroa, 17 AD3d 1130, 1131 [2005], lv denied 5 NY3d 788 [2005]; People v Fehr, 303 AD2d 1039, 1040 [2003], lv denied 100 NY2d 538 [2003]).
discussed
Cited as authority (rule)
People v. McClain
Although under the circumstances of this case that waiver does not encompass defendant’s challenge to the severity of the sentence (see People v Newman, 21 AD3d 1343 [2005]; People v Fehr, 303 AD2d 1039, 1040 [2003], lv denied 100 NY2d 538 [2003]), we nevertheless conclude that the sentence is not unduly harsh or severe.
discussed
Cited as authority (rule)
People v. Harper
We agree with defendant that his waiver of the right to appeal was invalid (see People v Fehr, 303 AD2d 1039, 1039-1040 [2003], lv denied 100 NY2d 538 [2003]; cf. People v Lococo, 92 NY2d 825, 827 [1998]), and thus the waiver does not encompass defendant’s challenge to the severity of the sentence (cf. Lococo, 92 NY2d at 827 ).
discussed
Cited as authority (rule)
People v. Pennick
We agree with defendant that his waiver of the right to appeal is unenforceable (see People v Thaxton, 309 AD2d 1255 [2003]; People v Fehr, 303 AD2d 1039, 1039-1040 [2003], lv denied 100 NY2d 538 [2003]; People v Brown, 296 AD2d 860 [2002], lv denied 98 NY2d 767 [2002]).
discussed
Cited "see"
People v. Charles
Moreover, since the record suggests “some expression of reservation by the court about the fairness of the sentenced] to be imposed” (People v Barzge, 244 AD 2d 213, 214 [1997]; see People v Seymour, 21 AD3d 1292, 1293 [2005]), we reverse the sentences and remit the matter for resentencing (see People v Fehr, 303 AD2d 1039, 1040 [2003]; People v Jimenez, 209 AD2d 719, 720 [1994]; People v Martin-dale, 202 AD2d 158 , 159 [1994]; People v Best, 77 AD2d 836, 837 [1980]).
discussed
Cited "see"
People v. Newman
Supreme Court’s reference to defendant’s right to appeal does not establish that the court “ ‘engage [d] the defendant in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice’ ” (People v Brown, 296 AD2d 860, 860 [2002], lv denied 98 NY2d 767 [2002]; see People v Fehr, 303 AD2d 1039, 1039-1040 [2003], lv denied 100 NY2d 538 [2003]).
discussed
Cited "see"
People v. Figueroa
That description “reflects the court’s misapprehension that it had no ability to exercise its discretion concerning such fines” (People v Domin, 284 AD2d 731, 733 [2001], lv denied 96 NY2d 918 [2001]; see People v Fehr, 303 AD2d 1039, 1040 [2003], lv denied 100 NY2d 538 [2003]; People v John, 288 AD2d 848, 850 [2001], lv denied 97 NY2d 705 [2002]).
discussed
Cited "see"
People v. Stanley
Here, the court stated that it was not “[its] place to address” defendant’s request for a period of postrelease supervision of less than five years, “thereby indicating ‘the court’s misapprehension that it had no ability to exercise its discretion’ ” in determining whether to impose a shorter period of postrelease supervision (People v John, 288 AD2d 848, 850 [2001], lv denied 97 NY2d 705 [2001]; see People v Fehr, 303 AD2d 1039, 1040 [2003]).
Retrieving the full opinion text from the archive…
The People of the State of New York
v.
Charles M. Evans
v.
Charles M. Evans
Appellate Division of the Supreme Court of the State of New York.
Mar 21, 2003.
Published
—Appeal from a judgment of Chautauqua County Court (Ward, J.), entered February 7, 2000, convicting defendant after a jury trial of, inter alia, assault in the second 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 of, inter alia, assault in the second degree (Penal Law § 120.05 [2]). We reject the contention of defendant that the prosecutor’s remarks during summation denied him a fair trial. The remarks with respect to the electrical cord that defendant used to strike the victim were fair comment on defense counsel’s summation (see People v O'Donnell, 295 AD2d 936, 937 [2002], lv denied 98 NY2d 770 [2002]) and the fact that the prosecutor struck the table with the electrical cord did not have “ ‘a decided tendency to prejudice the jury’ ” (People v Halm, 81 NY2d 819, 821 [1993]). Any prejudice with respect to the prosecutor’s remark that defendant had a firearm in his pickup truck was alleviated by County Court’s curative instruction (cf. People v Calabria, 94 NY2d 519, 523 [2000]). The sentence is neither unduly harsh nor severe. Present — Pine, J.P., Scudder, Kehoe, Lawton and Hayes, JJ.