THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. JULIO DIAZ DEFENDANT APPELLANT

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Supreme Court, Appellate Division, Fourth Department.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. JULIO DIAZ, DEFENDANT–APPELLANT.

KA 14–00310

Decided: September 30, 2016

PRESENT:  SMITH, J.P., PERADOTTO, DEJOSEPH, TROUTMAN, AND SCUDDER, JJ. 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.

MEMORANDUM AND ORDER

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.

Frances E. Cafarell

Clerk of the Court