PEOPLE v. ARRIAZA ORTEGA (2023)

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Rockland County (Kevin F. Russo, J.), rendered August 10, 2021, convicting him of assault in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the People's contention, the defendant did not validly waive his right to appeal the excessiveness of the sentence imposed (see People v. Moye, 164 A.D.3d 698, 698, 81 N.Y.S.3d 191;  People v. Boswell, 35 A.D.3d 1218, 825 N.Y.S.2d 896).  During the plea allocution, the County Court expressly excluded a challenge to the excessiveness of the sentence imposed from the challenges foreclosed by the waiver of the right to appeal by telling the defendant that he was giving up his right to appeal, with the exception of challenging the excessiveness of his sentence (see People v. Moye, 164 A.D.3d at 698, 81 N.Y.S.3d 191).

Nevertheless, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

CONNOLLY, J.P., BRATHWAITE NELSON, MALTESE and CHRISTOPHER, JJ., concur.