Opinion
2018–10117 2018–10118 Ind.Nos. 2358/17, 2396/17
07-22-2020
The PEOPLE, etc., Respondent, v. Jamie J. TODARELLO, appellant.
Laurette D. Mulry, Riverhead, N.Y. (Felice B. Milani of counsel), for appellant. Timothy D. Sini, District Attorney, Riverhead, N.Y. (Timothy P. Finnerty and Thomas Costello of counsel), for respondent.
Laurette D. Mulry, Riverhead, N.Y. (Felice B. Milani of counsel), for appellant.
Timothy D. Sini, District Attorney, Riverhead, N.Y. (Timothy P. Finnerty and Thomas Costello of counsel), for respondent.
ALAN D. SCHEINKMAN, P.J., RUTH C. BALKIN, CHERYL E. CHAMBERS, PAUL WOOTEN, JJ.
DECISION & ORDER Appeals by the defendant from two judgments of the County Court, Suffolk County (Martin Efman, J.), both rendered August 2, 2018, convicting him of burglary in the third degree under Indictment No. 2396/17 and burglary in the third degree under Indictment No. 2358/17, upon his pleas of guilty, and imposing sentences. ORDERED that the judgments are affirmed.
The record demonstrates that the defendant's waiver of the right to appeal was knowing, intelligent, and voluntary (see People v. Sanders, 25 N.Y.3d 337, 339–342, 12 N.Y.S.3d 593, 34 N.E.3d 344 ; People v. Lopez, 6 N.Y.3d 248, 256–257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). Contrary to the People's contention, the waiver does not foreclose appellate review of the defendant's contention that he was deprived of due process by the County Court's failure to conduct a hearing to determine if he violated a condition of the plea agreement (see People v. Rodas, 131 A.D.3d 1181, 1181–1182, 16 N.Y.S.3d 591 ; People v. Bracy, 131 A.D.3d 538, 539, 15 N.Y.S.3d 397 ; People v. Youmans, 106 A.D.3d 1036, 965 N.Y.S.2d 381 ). Nevertheless, the court's determination that the defendant violated the conditions of his release under the judicial diversion program was consistent with due process requirements and supported by reliable and accurate evidence, namely, the contents of the presentence report (see CPL 216.05[9][b] ; People v. Keller, 139 A.D.3d 755, 31 N.Y.S.3d 885 ; People v. Travers, 95 A.D.3d 1239, 1240, 945 N.Y.S.2d 169 ).
The defendant's valid waiver of the right to appeal precludes appellate review of his contention that the County Court improvidently exercised its discretion in imposing an enhanced sentence, as well as his contention that the enhanced sentence was excessive (see People v. Hidalgo, 91 N.Y.2d 733, 675 N.Y.S.2d 327, 698 N.E.2d 46 ; People v. Catanzaro, 157 A.D.3d 961, 962, 67 N.Y.S.3d 493 ).
SCHEINKMAN, P.J., BALKIN, CHAMBERS and WOOTEN, JJ., concur.