Opinion
07-10-2024
The PEOPLE, etc., respondent, v. Deon GUIN, appellant.
Patricia Pazner, New York, NY (Victoria L. Benton of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Gamaliel Marrero of counsel; Darci Siegel on the brief), for respondent.
Patricia Pazner, New York, NY (Victoria L. Benton of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Gamaliel Marrero of counsel; Darci Siegel on the brief), for respondent.
ANGELA G. IANNACCI, J.P., CHERYL E. CHAMBERS, WILLIAM G. FORD, LILLIAN WAN, JJ.
DECISION & ORDER
Appeals by the defendant from three judgments of the Supreme Court, Kings County (Frederick C. Arriaga, J.), all rendered December 15, 2021, convicting him of burglary in the third degree under Superior Court Information No. 884/20, burglary in the second degree under Superior Court Information No. 980/20, and bail jumping in the second degree under Indictment No. 2201/20, upon his pleas of guilty, and imposing sentences.
ORDERED that the judgments are affirmed.
The record reflects that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145; People v. Orta, 169 A.D.3d 932, 932, 92 N.Y.S.3d 672). The defendant’s valid waiver of his right to appeal precludes appellate review of his contention that the Supreme Court improvidently exercised its discretion upon terminating the defendant’s participation in the judicial diversion program (see People v. Sabater, 144 A.D.3d 950, 951, 40 N.Y.S.3d 780).
Although the defendant’s contention that the Supreme Court improperly delegated its authority during sentencing survives the defendant’s valid waiver of the right to appeal, that contention is unpreserved for appellate review (see People v. Lashley, 167 A.D.3d 778, 87 N.Y.S.3d 503; see also People v. Nolcox, 40 A.D.3d 1128, 834 N.Y.S.2d 883). In any event, in exercising its discretion to terminate the defendant’s participation in the judicial diversion program, the court properly considered the recommendations of the prosecutor, the treatment provider, the probation depart- ment, the statements made at sentencing, and the defendant’s criminal history (see People v. Vasquez, 131 A.D.3d 1076, 1077, 16 N.Y.S.3d 464).
It is undisputed that the defendant did not validly waive his right to appeal the excessiveness of the sentence imposed on the conviction of burglary in the second degree under Indictment No. 2201/20, as the Supreme Court expressly excluded a challenge to the excessiveness of that sentence imposed from the challenges foreclosed by the waiver of the right to appeal (see People v. Arriaza-Ortega, 216 A.D.3d 1175, 190 N.Y.S.3d 432). Nevertheless, the sentence imposed upon the defendant’s conviction of burglary in the second degree was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).
IANNACCI, J.P., CHAMBERS, FORD and WAN, JJ., concur.