THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. MICHAEL TEDESCO JR DEFENDANT APPELLANT (2016)

Supreme Court, Appellate Division, Fourth Department.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. MICHAEL TEDESCO, JR., DEFENDANT–APPELLANT.

KA 15–00606

Decided: October 07, 2016

PRESENT: WHALEN, P.J., CENTRA, NEMOYER, TROUTMAN, AND SCUDDER, JJ.

ERICKSON WEBB SCOLTON & HAJDU, LAKEWOOD (LYLE T. HAJDU OF COUNSEL), FOR DEFENDANT–APPELLANT. MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO (DANIEL J. PUNCH OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

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; People v. Dexter, 71 AD3d 1504, 1504–1505, lv denied 14 NY3d 887). We further conclude, however, that the sentence imposed upon defendant's violation of probation is not unduly harsh or severe.

Frances E. Cafarell

Clerk of the Court

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