People v. Miles

Judgment unanimously affirmed. Memorandum: Defendant pleaded guilty to all charges contained in an indictment charging him with murder in the second degree (Penal Law § 125.25 [1]; § 20.00), attempted murder in the second degree (Penal Law §§ 110.00, 125.25 [1]; § 20.00) and other related offenses. The plea was bargained for with the understanding that defendant would receive a sentence concurrent with the sentence imposed on his conviction for murder and attempted murder under another indictment and that the sentence would not exceed the sentence imposed on the other indictment. Supreme Court sentenced defendant, in accordance with the terms of his plea agreement, to a term concurrent with a similar sentence imposed under the other indictment. This Court recently modified the judgment of conviction on the other indictment in one minor respect that did not affect the aggregate sentence imposed and otherwise affirmed the conviction (People v Miles, 236 AD2d 786). Thus, there is no merit to the contention of defendant that his conviction must be set aside pursuant to People v Fuggazzatto (62 NY2d 862, 863). The challenge to the prosecutor’s instructions to the Grand Jury, raised in defendant’s pro se supplemental brief, does not survive the guilty plea (see, People v Ivey [appeal No. 2], 229 AD2d 1020, lv denied 89 NY2d 865).

Considering the heinous nature of the offenses, defendant’s sentence is neither unduly harsh nor severe. (Appeal from Judgment of Supreme Court, Erie County, Rossetti, J.—Murder, 2nd Degree.) Present—Green, J. P., Pine, Callahan, Balio and Boehm, JJ.