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#354 Third Department Caselaw Round-Up for April 19, 2012, Part 2 of 2

354 Post 04-19-12, Part 2 Third Department April.pngThere are two DWI cases to analyze today, and the Third Department makes quick work of each.

The first case is a lesson on what not to do with an appeal: do not raise the sole argument that the sentence is harsh an excessive. That argument – even when found together with other arguments – is, in my mind, the weakest argument that can be made in a criminal appeal. Of course, if you’ve got nothing else, it sure beats filing an Anders Brief.

The second case is quite similar to the first, with the same result.

354 Post-2 Schoharie County.pngCase #227 #103990
People v. Gertzberg
Schoharie County-Bartlett Issues: Criminal Charges; DWI Cited statutes: None Affirmed

The defendant pled guilty to driving while intoxicated and was only sentenced to five years of felony probation. However, the defendant violated his probation on at least three occasions, resulting in three violation of probation petitions being filed against him. The defendant was subsequently sentenced to 1 to 3 years in prison for a felony DWI and was thereafter sentenced to 1 1/3 to 4 years in prison for his violations of probation, to run consecutively to the prior sentence, for a minimum aggregate sentence of 2 1/3 to 7 years in prison.

The defendant appealed.

And the defendant is shot down. The defendant was precluded from making the argument on appeal that his sentence was harsh and excessive “by reason of his knowing, voluntary and intelligent waiver of the right to appeal.”