PEOPLE v. NORRIS (2020)

Judgment, Supreme Court, New York County (Daniel P. Conviser, J.), rendered March 21, 2017, convicting defendant, upon his plea of guilty, of two counts of assault in the first degree, and sentencing him, as a second violent felony offender, to concurrent terms of 18 years, unanimously affirmed.

Defendant made a valid waiver of his right to appeal.  The court's oral colloquy, taken together with a written waiver, established that the waiver was knowing, intelligent and voluntary (see People v. Thomas, 34 N.Y.3d 545, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied ––– U.S. ––––, 140 S. Ct. 2634, 206 L.Ed.2d 512 [2020];  People v. Bryant, 28 N.Y.3d 1094, 1096, 45 N.Y.S.3d 335, 68 N.E.3d 60 [2016] ).

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.  Before sentencing, defendant alerted the court that he had not been produced for an interview by the Probation Department (see People v. Pinkston, 138 A.D.3d 431, 432, 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].  However, we find that defendant was not prejudiced by the lack of an interview.  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] ).  Moreover, there is no allegation that the report here was so deficient as to be a nullity, and defendant received the precise sentence he was promised (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] ).