THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. APPEAL NO (2016)

Supreme Court, Appellate Division, Fourth Department.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. JOSHUA D. MCCARTHY, DEFENDANT–APPELLANT. (APPEAL NO. 1.)

KA 15–00645

Decided: December 23, 2016

PRESENT: CENTRA, J.P., CARNI, NEMOYER, CURRAN, AND TROUTMAN, JJ.

DAVISON LAW OFFICE PLLC, CANANDAIGUA (MARY P. DAVISON OF COUNSEL), FOR DEFENDANT–APPELLANT. DONALD G. O'GEEN, DISTRICT ATTORNEY, WARSAW (VINCENT A. HEMMING OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

It is hereby ORDERED that said appeal from the judgment insofar as it imposed sentence on the conviction of menacing a police officer or peace officer is unanimously dismissed and the judgment is affirmed.

Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him upon his plea of guilty of aggravated criminal contempt (Penal Law § 215.52), menacing a police officer or peace officer

(§ 120.18), and attempted aggravated assault upon a police officer or a peace officer (§§ 110.00, 120.11) and, in appeal No. 2, he appeals from the resentence imposed on the conviction of menacing a police officer or peace officer. Contrary to defendant's contention in appeal No. 1, the record establishes that he knowingly, voluntarily, and intelligently waived the right to appeal (see generally People v. Lopez, 6 NY3d 248, 256), and that valid waiver forecloses any challenge by defendant to the severity of the sentence and resentence (see id. at 255; see generally People v. Lococo, 92 N.Y.2d 825, 827; People v. Hidalgo, 91 N.Y.2d 733, 737).

Frances E. Cafarell

Clerk of the Court

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