THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. STEVEN JOHNSON DEFENDANT APPELLANT (2018)

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 attempted criminal sale of a controlled substance in the third degree (Penal Law §§ 110.00, 220.39[1] ).  Even assuming, arguendo, that defendant's waiver of the right to appeal is invalid and thus does not preclude our review of his challenge to the severity of his sentence (see People v. Davis, 114 AD3d 1166, 1167 [4th Dept 2014], lv denied 23 NY3d 1035 [2014] ), we conclude that the sentence is not unduly harsh or severe.

As the People correctly concede, however, the certificate of conviction and uniform sentence and commitment must be amended because they incorrectly reflect that defendant was sentenced as a second felony offender when he was actually sentenced as a second felony drug offender (see People v. Holmes, 147 AD3d 1367, 1368 [4th Dept 2017], lv denied 29 NY3d 998 [2017] ).

Mark W. Bennett

Clerk of the Court