People v. Diaz — 142 A.D.3d 1332

Majority

p. 1332

The People of the State of New York, Respondent, v Julio Diaz, Appellant.

[38 NYS3d 460]

Appeal from a judgment

p. 1333

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 [2012]; People v Tomeno, 141 AD3d 1120 , 1120-1121 [2016]). We nevertheless conclude that the sentence is not unduly harsh or severe.

Present — Smith, J.P., Peradotto, DeJoseph, Troutman and Scudder, JJ.

Cases cited

People v. Maracle 19 NY3d 925 N.Y. 2012-06-27 at 927-928 p. 1333
People v. Tomeno 141 AD3d 1120 N.Y. App. Div. 2016-07-01 at 1120-1121 p. 1333