| People v Green |
| 2019 NY Slip Op 09119 [178 AD3d 1354] |
| December 20, 2019 |
| Appellate Division, Fourth Department |
[*1](December 20, 2019)
| The People of the State of New York,Respondent, v Nicole L. Green, Also Known as Nicole Green,Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (James M. Specyal of counsel), fordefendant-appellant.
Lawrence Friedman, District Attorney, Batavia (Shirley A. Gorman of counsel), forrespondent.
Appeal from a judgment of the Genesee County Court (Robert C. Noonan, J.), renderedDecember 1, 2015. The judgment convicted defendant, upon her plea of guilty, of attemptedburglary in the second degree. The judgment was affirmed by order of this Court entered April27, 2018, in a memorandum decision (160 AD3d 1422 [2018]), and defendant on September 18,2018, was granted leave to appeal to the Court of Appeals from the order of this Court (32 NY3d1004 [2018]), and the Court of Appeals on November 26, 2019, reversed the order and remittedthe case to this Court for a determination of all issues raised but not determined on the appeal tothis Court (— NY3d &mdash, 2019 NY Slip Op 08545 [2019]).
Now, upon remittitur from the Court of Appeals,
It is hereby ordered that, upon remittitur from the Court of Appeals, the judgment soappealed from is unanimously affirmed.
Memorandum: This case is before us upon remittitur from the Court of Appeals (People vThomas, — NY3d &mdash, 2019 NY Slip Op 08545 [2019], revg People vGreen, 160 AD3d 1422 [4th Dept 2018]). We previously affirmed the judgment convictingdefendant upon her plea of guilty of attempted burglary in the second degree (Penal Law§§ 110.00, 140.25 [2]), concluding that defendant's waiver of the right toappeal was knowing, voluntary and intelligent, and that the waiver encompassed her challenge tothe severity of the sentence (Green, 160 AD3d at 1422-1423). The Court of Appealsreversed, stating that it "cannot conclude that the appeal waiver[ ] on the record[ ] inGreen [was] knowingly or voluntarily made in the face of erroneous advisements warningof absolute bars to the pursuit of all potential remedies, including those affording collateral reliefon certain nonwaivable issues in both state and federal courts" (Thomas, — NY3dat &mdash, 2019 NY Slip Op 08545, *7). The Court of Appeals remitted the matter to this Court"for a determination of all issues raised but not determined" previously (— NY3d at&mdash, 2019 NY Slip Op 08545, *7).
After review of defendant's contention upon remittitur, we conclude that the sentence is notunduly harsh or severe. Present—Smith, J.P., Centra, NeMoyer, Curran and Troutman,JJ.