Opinion
09-16-2015
The PEOPLE, etc., respondent, v. Daniel VASQUEZ, appellant.
Lynn W.L. Fahey, New York, N.Y. (Tammy E. Linn of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Nancy Fitzpatrick Talcott of counsel; Deanna Russo on the memorandum), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Tammy E. Linn of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Nancy Fitzpatrick Talcott of counsel; Deanna Russo on the memorandum), for respondent.
Opinion Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County (Braun, J.), imposed May 9, 2013, upon his plea of guilty, on the ground that the sentence was excessive.
ORDERED that the sentence is affirmed.
The defendant's valid waiver of his right to appeal precludes review of his contention that the sentence imposed was excessive (see People v. Bradshaw, 18 N.Y.3d 257, 264–267, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; People v. Lopez, 6 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Brown, 122 A.D.3d 133, 992 N.Y.S.2d 297 ). However, to the extent that the defendant asserts that the Supreme Court failed to exercise its discretion at sentencing (cf. People v. Farrar, 52 N.Y.2d 302, 306, 437 N.Y.S.2d 961, 419 N.E.2d 864 ), that contention survives the defendant's valid waiver of his right to appeal (see People v. Gary, 106 A.D.3d 932, 933, 964 N.Y.S.2d 656 ; People v. Nolcox, 40 A.D.3d 1128, 834 N.Y.S.2d 883 ). Nevertheless, the record reveals that the court providently exercised its discretion at sentencing, upon consideration, inter alia, of the probation report and statements made at sentencing (see People v. Gray, 51 A.D.3d 945, 856 N.Y.S.2d 887 ; People v. Vega, 51 A.D.3d 694, 855 N.Y.S.2d 915 ).
ENG, P.J., RIVERA, HALL, AUSTIN and COHEN, JJ., concur.