PEOPLE v. HOKE (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, inter alia, criminal sexual act in the first degree (Penal Law § 130.50[1] ) and criminal sexual act in the third degree (§ 130.40[2] ).  Defendant validly waived his right to appeal (see People v. Robinson, 112 A.D.3d 1349, 1349, 977 N.Y.S.2d 529 [4th Dept. 2013], lv denied 23 N.Y.3d 1042, 993 N.Y.S.2d 255, 17 N.E.3d 510 [2014];  People v. Hinkson, 59 A.D.3d 934, 935, 873 N.Y.S.2d 398 [4th Dept. 2009], lv denied 12 N.Y.3d 817, 881 N.Y.S.2d 24, 908 N.E.2d 932 [2009];  see also People v. King, 151 A.D.3d 1651, 1652, 56 N.Y.S.3d 398 [4th Dept. 2017], lv denied 30 N.Y.3d 951, 67 N.Y.S.3d 134, 89 N.E.3d 524 [2017] ), and that waiver encompasses his challenge to the severity of his sentence (see People v. Lopez, 6 N.Y.3d 248, 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ).  Although defendant's remaining contentions survive his valid appeal waiver (see People v. Sears, 158 A.D.3d 1293, 1294, 68 N.Y.S.3d 370 [4th Dept. 2018], lv denied 31 N.Y.3d 1087, 79 N.Y.S.3d 108, 103 N.E.3d 1255 [2018];  People v. Copes, 145 A.D.3d 1639, 1639, 44 N.Y.S.3d 833 [4th Dept. 2016], lv denied 28 N.Y.3d 1182, 52 N.Y.S.3d 709, 75 N.E.3d 101 [2017] ), they are nevertheless unpreserved and we decline to review them as a matter of discretion in the interest of justice (see Sears, 158 A.D.3d at 1294, 68 N.Y.S.3d 370;  People v. Wilson, 289 A.D.2d 1088, 1088, 735 N.Y.S.2d 463 [4th Dept. 2001], lv denied 98 N.Y.2d 656, 745 N.Y.S.2d 516, 772 N.E.2d 619 [2002] ).

As defendant correctly notes, County Court erroneously stated, prior to imposing sentence, that he had pleaded guilty to criminal sexual act in the third degree under count 32 of the indictment.  In fact, defendant had pleaded guilty to criminal sexual act in the first degree under that count.  Nevertheless, when viewed in context, it is apparent that the court merely misspoke and actually intended to and did impose sentence for the appropriate crime consistent with the negotiated term.  Thus, as the Second Department recognized under these exact circumstances, “a remittitur for what must necessarily be reimposition of the same sentence would serve no purpose whatsoever” (People v. Tarrant, 109 A.D.2d 763, 764, 486 N.Y.S.2d 79 [2d Dept. 1985];  see also People v. Martinez, 243 A.D.2d 923, 925, 663 N.Y.S.2d 398 [3d Dept. 1997] ).

Finally, the uniform sentence and commitment form must be amended to state that the sentence on count 32 runs concurrently with the sentences on count 1 and count 8, and to reflect the correct offense dates as specified in counts 1, 8, and 32 of the indictment (see People v. Southard, 163 A.D.3d 1461, 1462, 76 N.Y.S.3d 869 [4th Dept. 2018] ).