| People v Johnson |
| 2018 NY Slip Op 03255 [161 AD3d 1529] |
| May 4, 2018 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Steven J. Johnson, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Caitlin M. Connelly of counsel), fordefendant-appellant.
Joseph V. Cardone, District Attorney, Albion (Katherine Bogan of counsel), forrespondent.
Appeal from a judgment of the Orleans County Court (James P. Punch, J.), rendered June 29,2015. The judgment convicted defendant, upon his plea of guilty, of attempted criminal sale of acontrolled substance in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty ofattempted criminal sale of a controlled substance in the third degree (Penal Law§§ 110.00, 220.39 [1]). Even assuming, arguendo, that defendant's waiver ofthe right to appeal is invalid and thus does not preclude our review of his challenge to theseverity of his sentence (see People vDavis, 114 AD3d 1166, 1167 [4th Dept 2014], lv denied 23 NY3d 1035 [2014]),we conclude that the sentence is not unduly harsh or severe.
As the People correctly concede, however, the certificate of conviction and uniform sentenceand commitment must be amended because they incorrectly reflect that defendant was sentencedas a second felony offender when he was actually sentenced as a second felony drug offender (see People v Holmes, 147 AD3d1367, 1368 [4th Dept 2017], lv denied 29 NY3d 998 [2017]).Present—Centra, J.P., Carni, DeJoseph, Troutman and Winslow, JJ.