Opinion
322 KA 19-00584
05-01-2020
The PEOPLE of the State of New York, Respondent, v. Justin DUKELOW, Defendant–Appellant.
DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (THERESA L. PREZIOSO OF COUNSEL), FOR DEFENDANT–APPELLANT. CAROLINE A. WOJTASZEK, DISTRICT ATTORNEY, LOCKPORT (LAURA T. JORDAN OF COUNSEL), FOR RESPONDENT.
DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (THERESA L. PREZIOSO OF COUNSEL), FOR DEFENDANT–APPELLANT.
CAROLINE A. WOJTASZEK, DISTRICT ATTORNEY, LOCKPORT (LAURA T. JORDAN OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., TROUTMAN, WINSLOW, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment revoking the sentence of probation previously imposed upon his conviction of sexual abuse in the first degree ( Penal Law § 130.65[3] ) and sentencing him to a determinate term of imprisonment, followed by a period of postrelease supervision. Even assuming, arguendo, that defendant's waiver of the right to appeal during the underlying plea proceeding was valid, 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. Giuliano, 151 A.D.3d 1958, 1959, 54 N.Y.S.3d 904 [4th Dept. 2017], lv. denied 30 N.Y.3d 949, 67 N.Y.S.3d 133, 89 N.E.3d 523 [2017] ; People v. Tedesco, 143 A.D.3d 1279, 1279, 38 N.Y.S.3d 499 [4th Dept. 2016], lv . denied 28 N.Y.3d 1075, 47 N.Y.S.3d 234, 69 N.E.3d 1030 [2016] ). We further conclude, however, that the sentence imposed upon defendant's violation of probation is not unduly harsh or severe.