PEOPLE v. TORRES (2023)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Ulster County (Donald A. Williams, J.), rendered September 26, 2016, convicting defendant upon his plea of guilty of the crime of burglary in the first degree.

Defendant and two others were charged in a 23–count indictment with various crimes stemming from a home invasion robbery in which they displayed multiple firearms to the home's occupants, including several children.  In satisfaction of the charges against him, defendant pleaded guilty to burglary in the first degree and waived his right to appeal upon the understanding that he would receive a sentence of no more than 18 years in prison and five years of postrelease supervision.  County Court advised defendant during the plea colloquy that it would hear defendant's arguments at sentencing regarding the propriety of a sentence below that cap, but that it “intend[ed] to sentence” him at the cap as things stood and that he had “to be thinking ․ [that he was] going to get 18 years” if he pleaded guilty.  Defendant acknowledged that he understood this before pleading guilty.  County Court thereafter sentenced him at the cap, and defendant appeals.

We affirm.  Initially, we reject defendant's claim that County Court's reference at sentencing to certain out-of-court statements made by a victim and the other participants in the crime violated his Sixth Amendment right of confrontation (see Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 [2004]), as “[t]his protection pertains to the admissibility of testimonial statements at trial and does not extend to sentencing” (People v. Stacchini, 108 A.D.3d 866, 867, 969 N.Y.S.2d 218 [3d Dept. 2013];  see People v. Leon, 10 N.Y.3d 122, 125–126, 855 N.Y.S.2d 38, 884 N.E.2d 1037 [2008], cert denied 554 U.S. 926, 128 S.Ct. 2976, 171 L.Ed.2d 900 [2008]).  Defendant's unchallenged appeal waiver precludes his remaining claims of judicial bias (see People v. Nack, 200 A.D.3d 1197, 1199, 157 N.Y.S.3d 590 [3d Dept. 2021], lv denied 38 N.Y.3d 1009, 168 N.Y.S.3d 365, 188 N.E.3d 557 [2022];  People v. Danielson, 170 A.D.3d 1430, 1431–1432, 96 N.Y.S.3d 754 [3d Dept. 2019], lv denied 33 N.Y.3d 1030, 102 N.Y.S.3d 515, 126 N.E.3d 165 [2019], cert denied ––– U.S. ––––, 140 S.Ct. 486, 205 L.Ed.2d 280 [2019]), as well as his challenge to the severity of his sentence (see People v. Hines, 200 A.D.3d 1217, 1218, 157 N.Y.S.3d 608 [3d Dept. 2021], lv denied 38 N.Y.3d 928, 164 N.Y.S.3d 29, 184 N.E.3d 850 [2022];  People v. Blackburn, 164 A.D.3d 960, 962, 82 N.Y.S.3d 242 [3d Dept. 2018]).  In any event, although we agree with defendant that County Court subjected him to extended questioning and commentary at sentencing that was intemperate and inappropriate, the fact remains that defendant received the sentence that he knew he would likely receive when he pleaded guilty, and we would therefore perceive no reason to disturb that sentence (compare People v. Winter, 215 A.D.3d 1010, 1012–1013, 187 N.Y.S.3d 125 [3d Dept. 2023], and People v. Rennie–Russell, 201 A.D.3d 1246, 1247, 160 N.Y.S.3d 484 [3d Dept. 2022], with People v. Lancaster, 200 A.D.3d 1352, 1356–1357, 158 N.Y.S.3d 399 [3d Dept. 2021], lv denied 38 N.Y.3d 951, 165 N.Y.S.3d 477, 185 N.E.3d 998 [2022]).

ORDERED that the judgment is affirmed.

Egan Jr., J.P.

Aarons, Ceresia, Fisher and McShan, JJ., concur.