PEOPLE v. EMMA

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The PEOPLE, etc., respondent, v. Salvatore EMMA, appellant.

Decided: December 26, 2012

PETER B. SKELOS, J.P., RUTH C. BALKIN, CHERYL E. CHAMBERS, and ROBERT J. MILLER, JJ. Lynn W.L. Fahey, New York, N.Y. (David P. Greenberg of counsel), for appellant. Daniel M. Donovan, Jr., District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart and Anne Grady of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Collini, J.), rendered June 11, 2010, convicting him of course of sexual conduct against a child in the first degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant pleaded guilty in exchange for the Supreme Court's conditional promise that it would impose the agreed-upon sentence. The court, however, carefully explained to the defendant the consequences if he were to violate the plea conditions. The defendant nonetheless violated a condition of the plea agreement, as the court found after conducting a hearing, and the court imposed an enhanced sentence. Although the defendant contends on appeal that the court abused its discretion by imposing an enhanced sentence, his claim, properly viewed, amounts to a request that we substitute our discretion for that of the court (see People v. Suitte, 90 A.D.2d 80, 86). The defendant's valid waiver of his right to appeal forecloses a claim that the court improvidently exercised its discretion in imposing an enhanced sentence (see People v. Miles, 268 A.D.2d 489, 490).

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