Opinion
207 KA 16–02360
04-26-2019
The PEOPLE of the State of New York, Respondent, v. Eli CASILLAS, Defendant-Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALAN WILLIAMS OF COUNSEL), FOR DEFENDANT–APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALAN WILLIAMS OF COUNSEL), FOR DEFENDANT–APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, DEJOSEPH, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of strangulation in the second degree ( Penal Law § 121.12 ) and assault in the second degree (§ 120.05[2] ). Contrary to the contention of defendant, we conclude that he validly waived his right to appeal (see People v. Slishevsky, 149 A.D.3d 1488, 1488–1489, 52 N.Y.S.3d 770 [4th Dept. 2017], lv denied 29 N.Y.3d 1086, 64 N.Y.S.3d 176, 86 N.E.3d 263 [2017] ; People v. Braxton, 129 A.D.3d 1674, 1675, 10 N.Y.S.3d 791 [4th Dept. 2015], lv denied 26 N.Y.3d 965, 18 N.Y.S.3d 601, 40 N.E.3d 579 [2015] ), and that valid waiver forecloses review of his challenge to the severity of the sentence (see People v. Lopez, 6 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; People v. Hidalgo, 91 N.Y.2d 733, 737, 675 N.Y.S.2d 327, 698 N.E.2d 46 [1998] ; cf. People v. Maracle, 19 N.Y.3d 925, 928, 950 N.Y.S.2d 498, 973 N.E.2d 1272 [2012] ).
The People correctly concede that the certificate of conviction and the court clerk's notes should be amended to omit any reference to community service, which Supreme Court did not impose as a condition of the sentence (see People v. Armendariz, 156 A.D.3d 1383, 1384, 65 N.Y.S.3d 864 [4th Dept. 2017], lv denied 31 N.Y.3d 981, 77 N.Y.S.3d 658, 102 N.E.3d 435 [2018] ; People v. Oberdorf, 136 A.D.3d 1291, 1292–1293, 24 N.Y.S.3d 545 [4th Dept. 2016], lv denied 27 N.Y.3d 1073, 38 N.Y.S.3d 843, 60 N.E.3d 1209 [2016] ; see also People v. Harrington, 21 N.Y.2d 61, 65, 286 N.Y.S.2d 477, 233 N.E.2d 456 [1967] ; see generally Penal Law § 65.10[1], [2][h] ).