Opinion
10-07-2016
The PEOPLE of the State of New York, Respondent, v. Michael TEDESCO, Jr., Defendant–Appellant.
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.
Appeal from a judgment of the Supreme Court, Erie County (M. William Boller, A.J.), rendered February 20, 2015. The judgment revoked defendant's sentence of probation and imposed a sentence of imprisonment.
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:
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 A.D.3d 1231, 1231, 18 N.Y.S.3d 809 ; People v. Dexter, 71 A.D.3d 1504, 1504–1505, 897 N.Y.S.2d 355, lv. denied 14 N.Y.3d 887, 903 N.Y.S.2d 775, 929 N.E.2d 1010 ). We further conclude, however, that the sentence imposed upon defendant's violation of probation is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
WHALEN, P.J., CENTRA, NEMOYER, TROUTMAN, and SCUDDER, JJ., concur.