PEOPLE v. JONES (2023)

Supreme Court, Appellate Division, Fourth Department, New York.

The PEOPLE of the State of New York, Respondent, v. Brandon JONES, Defendant-Appellant.

597 Decided: September 29, 2023

PRESENT: WHALEN, P.J., CURRAN, MONTOUR, OGDEN, AND DELCONTE, JJ.

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (NICHOLAS P. DIFONZO OF COUNSEL), FOR DEFENDANT-APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DANIEL J. MATTLE OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

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

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of manslaughter in the first degree (Penal Law § 125.20 [1]). Although the notice of appeal is taken from the judgment rendered January 31, 2020, and not the resentence on September 1, 2020, we exercise our discretion to treat the appeal as taken from the resentence (see CPL 460.10 [6]; People v Hennigan [appeal No. 1], 145 AD3d 1528, 1528 [4th Dept 2016], lv denied 29 NY3d 998 [2017]). Assuming, arguendo, that defendant's waiver of the right to appeal is invalid (see People v Thomas, 34 NY3d 545, 564-566 [2019], cert denied ––– US ––––, 140 S Ct 2634 [2020]; People v Stephens, 189 AD3d 2142, 2142 [4th Dept 2020]; People v Alls, 187 AD3d 1515, 1515 [4th Dept 2020]) and thus does not preclude our review of his challenge to the severity of his resentence (see Stephens, 189 AD3d at 2142; Alls, 187 AD3d at 1515), we conclude that the resentence is not unduly harsh or severe.

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