THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. MICHAEL COLEY DEFENDANT APPELLANT (2023)

Supreme Court, Appellate Division, Fourth Department, New York.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. MICHAEL V. COLEY, DEFENDANT-APPELLANT.

240 Decided: March 24, 2023

PRESENT: PERADOTTO, J.P., CURRAN, BANNISTER, AND MONTOUR, JJ.

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ADAM AMIRAULT OF COUNSEL), FOR DEFENDANT-APPELLANT. KEVIN T. FINNELL, DISTRICT ATTORNEY, BATAVIA (WILLIAM G. ZICKL OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: On appeal from a judgment convicting him upon his plea of guilty of attempted robbery in the first degree (Penal Law § 110.00, 160.15 [4]), defendant contends that his waiver of the right to appeal is invalid and that his sentence is unduly harsh and severe. Even assuming, arguendo, that defendant's waiver of the right to appeal was not knowingly, voluntarily and intelligently entered (see People v Terry, 203 AD3d 1578, 1578 [4th Dept 2022], lv denied 38 NY3d 1010 [2022]), we perceive no basis in the record to exercise our power to modify the negotiated sentence as a matter of discretion in the interest of justice (see CPL 470.15 [6] [b]).

We note, however, that the certificate of conviction erroneously states that defendant was convicted of attempted burglary in the first degree, and it must be amended to reflect that defendant was convicted of attempted robbery in the first degree (see generally People v Thurston, 208 AD3d 1629, 1630 [4th Dept 2022]).

Entered: March 24, 2023

Ann Dillon Flynn

Clerk of the Court

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