THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. JAMES PASCALAR DEFENDANT APPELLANT (2023)

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

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. JAMES D. PASCALAR, DEFENDANT-APPELLANT.

792 Decided: November 17, 2023

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

JULIE CIANCA, PUBLIC DEFENDER, ROCHESTER (TONYA PLANK OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

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 endangering the welfare of a vulnerable elderly person or an incompetent or physically disabled person in the second degree (Penal Law § 260.32 [4]), identity theft in the first degree (§ 190.80 [1]), and criminal possession of a forged instrument in the second degree (§ 170.25). Even assuming, arguendo, that defendant's waiver of the right to appeal is invalid (see People v Blackshear, 208 AD3d 1635, 1636 [4th Dept 2022], lv denied 39 NY3d 961 [2022]; see generally People v Thomas, 34 NY3d 545, 565-566 [2019], cert denied — US —, 140 S Ct 2634 [2020]) and thus does not preclude our review of his challenge to the severity of his sentence (see People v Alls, 187 AD3d 1515, 1515 [4th Dept 2020]), we conclude that the sentence is not unduly harsh or severe.

Entered: November 17, 2023

Ann Dillon Flynn

Clerk of the Court

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