The People of the State of New York, Respondent, v. Kenneth Davis, Defendant–Appellant.

Reset A A Font size: Print

Supreme Court, Appellate Division, First Department.

The People of the State of New York, Respondent, v. Kenneth Davis, Defendant–Appellant.


Decided: December 29, 2016

Acosta, J.P., Renwick, Andrias, Saxe, Gische, JJ. Seymour W. James, Jr., The Legal Aid Society, New York (Harold V. Ferguson, Jr. of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Susan Gliner of counsel), for respondent.


Judgment, Supreme Court, New York County (Michael J. Obus, J.), rendered March 27, 2014, convicting defendant, upon his plea of guilty, of identity theft in the first degree and two counts of criminal possession of a forged instrument in the second degree, and sentencing him, as a second felony offender, to concurrent terms of 21/212 to 5 years, unanimously affirmed.

The court's oral colloquy with defendant, viewed in conjunction with a written waiver, establishes a valid waiver of defendant's right to appeal (see People v. Sanders, 25 NY3d 337, 341 [2015];  People v. Lopez, 6 NY3d 248, 256–257 [2006] ).  This waiver forecloses review of defendant's claim relating to presentencing procedure.

Regardless of whether defendant validly waived his right to appeal, his claim that his sentence was based on a presentence report that lacked required information is unpreserved (see People v. Pinkston, 138 AD3d 431 [1st Dept 2016], lv denied 27 NY3d 1137 [2016] ), and we decline to review it in the interest of justice.  As an alternative holding, we find no basis for resentencing, because defendant could not have been prejudiced by the defective report.  Defendant received the precise sentence he bargained for, which was close to the minimum lawful sentence, and “had he wished to be interviewed by the Probation Department, he could have called the court's attention to the § lack of] such an interview” (id.).



Copied to clipboard