People v. Metzler

People v Metzler (2018 NY Slip Op 04002) People v Metzler 2018 NY Slip Op 04002 Decided on June 6, 2018 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on June 6, 2018 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department RUTH C. BALKIN, J.P. CHERYL E. CHAMBERS COLLEEN D. DUFFY HECTOR D. LASALLE, JJ. 2016-11758 [*1]The People of the State of New York, respondent, v Robert M. Metzler, appellant. (S.C.I. No. 264/14) Del Atwell, East Hampton, NY, for appellant. Robert Tendy, District Attorney, Carmel, NY (David M. Bishop of counsel), for respondent. DECISION & ORDER Appeal by the defendant from a resentence of the County Court, Putnam County (James F. Reitz, J.), imposed April 4, 2017, upon his conviction of burglary in the third degree (two counts), upon his plea of guilty. The defendant's notice of appeal from the judgment of conviction rendered September 29, 2016, is deemed a premature notice of appeal from the resentence imposed April 4, 2017 (see CPL 460.10[6]). ORDERED that the resentence is affirmed. As the original sentence of the judgment of conviction rendered September 29, 2016, was superseded by the resentence imposed April 4, 2017, we have deemed the notice of appeal from the judgment to be a premature notice of appeal from the resentence (see CPL 460.10[6]). The defendant's valid waiver of his right to appeal precludes appellate review of his contention that the resentence imposed was excessive (see People v Amay, 156 AD3d 895; People v Williams, 122 AD3d 781; People v Stewart, 66 AD3d 924). The defendant's remaining contention regarding the legality of the original sentence has been rendered academic in light of the imposition of the lawful resentence. BALKIN, J.P., CHAMBERS, DUFFY and LASALLE, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court