| People v Thomas |
| 2019 NY Slip Op 05469 |
| Decided on July 9, 2019 |
| Appellate Division, First 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 July 9, 2019
Renwick, J.P., Gische, Kapnick, Singh, JJ.
9807 1869/17 9806
v
Gioriver Thomas, Defendant-Appellant.
Lauriano Guzman, Jr., Bronx, for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Katherine Kulkarni of counsel), for respondent.
Judgment, Supreme Court, New York County (Stephen Antignani, J. at plea; Laurie Peterson, J. at sentencing), rendered October 19, 2018, convicting defendant, upon his plea of guilty, of criminal possession of a controlled substance in the first degree, and sentencing him to a term of eight years, unanimously affirmed. Purported interlocutory appeal from order, same court (Laurie Peterson, J.), entered on or about July 30, 2018, which denied defendant's application for sentencing-related relief, unanimously dismissed, as subsumed in the appeal from the judgment.
Defendant's valid waiver of his right to appeal forecloses his present claims. Furthermore, independently of any appeal waiver, under the express terms of defendant's plea agreement, he was not entitled to litigate whether his performance of the requirements of the agreement was sufficient to merit a more lenient sentence. Instead, it was entirely within the People's discretion to make that determination, provided that they did not engage in "arbitrary and capricious conduct." The record demonstrates that defendant's performance of the agreement did not warrant leniency, and that there was no arbitrary, capricious or bad faith conduct by the People (see e.g . People v Johnson, 291 AD2d 245 [1st Dept 2002], lv denied 98 NY2d 677 [2002]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JULY 9, 2019
CLERK