PEOPLE v. SERRANO (2018)

Judgment, Supreme Court, New York County (Michael R. Sonberg, J.), rendered November 10, 2015, convicting defendant, upon his plea of guilty, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony drug offender, to a term of four years, unanimously affirmed.

Defendant made a valid waiver of his right to appeal (see People v. Bryant, 28 N.Y.3d 1094, 1096, 45 N.Y.S.3d 335, 68 N.E.3d 60 [2016];  People v. Lopez, 6 N.Y.3d 248, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ).

Regardless of the validity of defendant's waiver of the right to appeal, we perceive no basis for reducing the sentence, or remanding for resentencing.  Defendant did not preserve his contention that his presentence report was deficient, or effectively a nullity, because he was not interviewed (see People v. Medero, 155 A.D.3d 469, 63 N.Y.S.3d 674 [1st Dept. 2017];  People v. Pinkston, 138 A.D.3d 431, 28 N.Y.S.3d 688 [1st Dept. 2016], lv denied 27 N.Y.3d 1137, 39 N.Y.S.3d 119, 61 N.E.3d 518 [2016], and we decline to review it in the interest of justice.  As an alternative holding, we find defendant's claim unavailing, because he received the sentence he was promised, he showed no inclination to seek even greater leniency, and had he wished to be interviewed, he could have requested an adjournment for such an interview instead of agreeing, through counsel, to proceed to sentencing without one (see People v. Rosa, 150 A.D.3d 442, 54 N.Y.S.3d 6 [1st Dept. 2017], lv denied 29 N.Y.3d 1094, 63 N.Y.S.3d 11, 85 N.E.3d 106 [2017];  People v. Davis, 145 A.D.3d 623, 42 N.Y.S.3d 823 [1st Dept. 2016], lv denied 28 N.Y.3d 1183, 52 N.Y.S.3d 709, 75 N.E.3d 101 [2017];  Pinkston, 138 A.D.3d at 432, 28 N.Y.S.3d 688).  This was not a case where no presentence report had been prepared at all (see People v. Andujar, 110 A.D.2d 606, 607, 488 N.Y.S.2d 653 [1st Dept. 1985] ), and we reject defendant's argument that the report here was so deficient as to be a nullity.  Moreover, “there is no statutory requirement that a defendant be interviewed” (Medero, 155 A.D.3d at 469, 63 N.Y.S.3d 674).