Opinion
No. 594 KA 21-00850
09-29-2023
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. COURTNEY MCDONELL, DEFENDANT-APPELLANT.
DAVID J. PAJAK, ALDEN, FOR DEFENDANT-APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY OF COUNSEL), FOR RESPONDENT.
DAVID J. PAJAK, ALDEN, FOR DEFENDANT-APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CURRAN, MONTOUR, OGDEN, AND DELCONTE, JJ.
Appeal from a judgment of the Erie County Court (Kenneth F. Case, J.), rendered June 17, 2019. The judgment convicted defendant upon a plea of guilty of attempted course of sexual conduct against a child.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting her upon her plea of guilty of attempted course of sexual conduct against a child (Penal Law §§ 110.00, 130.75 [1] [a]). We affirm.
Even assuming, arguendo, that defendant's waiver of the right to appeal is invalid and therefore does not preclude our review of her challenge to the severity of her sentence (see People v Bisono, 36 N.Y.3d 1013, 1017-1018 [2020]; People v Thomas, 34 N.Y.3d 545, 565-566 [2019], cert denied ___ U.S. ___, 140 S.Ct. 2634 [2020]; People v Lovines, 208 A.D.3d 1639, 1639 [4th Dept 2022]), we conclude that the sentence is not unduly harsh or severe.
Defendant also contends that County Court lost jurisdiction to impose sentence based on the seven-month delay between the entry of the plea and sentencing. That contention is unpreserved for our review inasmuch as defendant did not object to the delay in County Court, nor did she move to dismiss the indictment on that ground (see People v Guichard, 194 A.D.3d 745, 745 [2d Dept 2021], lv denied 37 N.Y.3d 972 [2021]; People v Vasquez, 168 A.D.3d 1185, 1186 [3d Dept 2019], lv denied 33 N.Y.3d 954 [2019]; see generally CPL 470.05 [2]). We decline to exercise our power to reach that contention as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c]).