DIAZ, JULIO, PEOPLE v

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 30, 2016
• Docket: KA 14-00310
• Status: Published

Opinion

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department

733 KA 14-00310 PRESENT: SMITH, J.P., PERADOTTO, DEJOSEPH, TROUTMAN, AND SCUDDER, JJ.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

V MEMORANDUM AND ORDER

JULIO DIAZ, DEFENDANT-APPELLANT.

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES A. HOBBS OF COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.

Appeal from a judgment of the Supreme Court, Monroe County (Joanne M. Winslow, J.), rendered November 12, 2013. The judgment convicted defendant, upon his plea of guilty, of course of sexual conduct against a child in the first degree.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of course of sexual conduct against a child in the first degree (Penal Law § 130.75 [1] [a]). As the People correctly concede, defendant’s oral and written waivers of his right to appeal from his conviction do not encompass his challenge to the severity of his sentence and thus do not foreclose our review of that challenge (see People v Maracle, 19 NY3d 925, 927-928; People v Tomeno, 141 AD3d 1120, 1120-1121). We nevertheless conclude that the sentence is not unduly harsh or severe.

Entered: September 30, 2016 Frances E. Cafarell Clerk of the Court