People v. Tedesco

Appellate Division of the Supreme Court of New York

People v. Tedesco

143 A.D.3d 1279, 38 N.Y.S.3d 499

Appellate Division of the Supreme Court of the State of New York·Decided October 7, 2016·Published·Cited by 4 cases

Opinion

Appeal from a judgment of the Supreme Court, Erie County (M. William Boiler, A.J.), rendered February 20, 2015. The judgment revoked defendant’s sentence of probation and imposed a sentence of imprisonment.

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

Memorandum: Defendant appeals from a judgment revoking the sentence of probation imposed upon his conviction of criminal sale of a controlled substance in the fourth degree (Penal Law § 220.34 [1]) and sentencing him to a determinate term of imprisonment, followed by a period of postrelease supervision. Even assuming, arguendo, that defendant executed a valid waiver of the right to appeal at the underlying plea proceeding, we conclude that the waiver does not encompass his challenge to the severity of the sentence imposed following his violation of probation (see People v Russell, 133 AD3d 1231, 1231 [2015]; People v Dexter, 71 AD3d 1504, 1504-1505 [2010], lv denied 14 NY3d 887 [2010]). We further conclude, however, that the sentence imposed upon defendant’s violation of probation is not unduly harsh or severe.

Present— Whalen, P.J., Centra, NeMoyer, Troutman and Scudder, JJ.

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Appeal from a judgment of the Supreme Court, Erie County (M. William Boiler, A.J.), rendered February 20, 2015. The judgment revoked defendant’s sentence of probation and imposed a sentence of imprisonment.

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

Memorandum: Defendant appeals from a judgment revoking the sentence of probation imposed upon his conviction of criminal sale of a controlled substance in the fourth degree (Penal Law § 220.34 [1]) and sentencing him to a determinate term of imprisonment, followed by a period of postrelease supervision. Even assuming, arguendo, that defendant executed a valid waiver of the right to appeal at the underlying plea proceeding, we conclude that the waiver does not encompass his challenge to the severity of the sentence imposed following his violation of probation (see People v Russell, 133 AD3d 1231, 1231 [2015]; People v Dexter, 71 AD3d 1504, 1504-1505 [2010], lv denied 14 NY3d 887 [2010]). We further conclude, however, that the sentence imposed upon defendant’s violation of probation is not unduly harsh or severe.

Present— Whalen, P.J., Centra, NeMoyer, Troutman and Scudder, JJ.

People v. Tedesco, 143 A.D.3d 1279, 38 N.Y.S.3d 499 (N.Y. Ct. App. 2016).

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