| People v Hoke |
| 2018 NY Slip Op 08826 [167 AD3d 1549] |
| December 21, 2018 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Leslie W. Hoke, Appellant. |
Leanne Lapp, Public Defender, Canandaigua, D.J. & J.A. Cirando, Esqs., Syracuse(Bradley E. Keem of counsel), for defendant-appellant.
James B. Ritts, District Attorney, Canandaigua (V. Christopher Eaggleston of counsel), forrespondent.
Appeal from a judgment of the Ontario County Court (Craig J. Doran, J.), rendered August19, 2013. The judgment convicted defendant, upon his plea of guilty, of attempted course ofsexual conduct against a child in the first degree, criminal sexual act in the first degree andcriminal sexual act 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 of,inter alia, criminal sexual act in the first degree (Penal Law § 130.50 [1]) andcriminal sexual act in the third degree (§ 130.40 [2]). Defendant validly waived hisright to appeal (see People vRobinson, 112 AD3d 1349, 1349 [4th Dept 2013], lv denied 23 NY3d 1042[2014]; People v Hinkson, 59 AD3d934, 935 [4th Dept 2009], lv denied 12 NY3d 817 [2009]; see also People v King, 151 AD3d1651, 1652 [4th Dept 2017], lv denied 30 NY3d 951 [2017]), and that waiverencompasses his challenge to the severity of his sentence (see People v Lopez, 6 NY3d 248, 255-256 [2006]). Althoughdefendant's remaining contentions survive his valid appeal waiver (see People v Sears, 158 AD3d1293, 1294 [4th Dept 2018], lv denied 31 NY3d 1087 [2018]; People v Copes, 145 AD3d 1639,1639 [4th Dept 2016], lv denied 28 NY3d 1182 [2017]), they are neverthelessunpreserved and we decline to review them as a matter of discretion in the interest of justice(see Sears, 158 AD3d at 1294; People v Wilson, 289 AD2d 1088, 1088 [4th Dept2001], lv denied 98 NY2d 656 [2002]).
As defendant correctly notes, County Court erroneously stated, prior to imposing sentence,that he had pleaded guilty to criminal sexual act in the third degree under count 32 of theindictment. In fact, defendant had pleaded guilty to criminal sexual act in the first degree underthat count. Nevertheless, when viewed in context, it is apparent that the court merely misspokeand actually intended to and did impose sentence for the appropriate crime consistent with thenegotiated term. Thus, as the Second Department recognized under these exact circumstances, "aremittitur for what must necessarily be reimposition of the same sentence would serve nopurpose whatsoever" (People v Tarrant, 109 AD2d 763, 764 [2d Dept 1985]; see alsoPeople v Martinez, 243 AD2d 923, 925 [3d Dept 1997]).
Finally, the uniform sentence and commitment form must be amended to state that thesentence on count 32 runs concurrently with the sentences on count 1 and count 8, and to reflectthe correct offense dates as specified in counts 1, 8, and 32 of the indictment (see People v Southard, 163 AD3d1461, 1462 [4th Dept 2018]). Present—Whalen, P.J., Peradotto, Carni and NeMoyer,JJ.