Opinion
255 KA 20-00589
03-19-2021
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALLYSON L. KEHL-WIERZBOWSKI OF COUNSEL), FOR DEFENDANT-APPELLANT. LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (ROBERT J. SHOEMAKER OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALLYSON L. KEHL-WIERZBOWSKI OF COUNSEL), FOR DEFENDANT-APPELLANT.
LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (ROBERT J. SHOEMAKER OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., CARNI, NEMOYER, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him, upon his plea of guilty, of strangulation in the second degree ( Penal Law § 121.12 ). In appeal No. 2, defendant appeals from a judgment revoking the sentence of probation previously imposed upon his conviction of strangulation in the second degree ( § 121.12 ) and imposing a determinate term of imprisonment, followed by a period of postrelease supervision. We note at the outset that we dismiss the appeal from the judgment in appeal No. 1 because defendant raises no contentions with respect thereto ( see People v. White , 173 A.D.3d 1852, 1852, 104 N.Y.S.3d 474 [4th Dept. 2019] ; People v. Scholz , 125 A.D.3d 1492, 1492, 3 N.Y.S.3d 860 [4th Dept. 2015], lv denied 25 N.Y.3d 1077, 12 N.Y.S.3d 628, 34 N.E.3d 379 [2015] ).
Contrary to defendant's initial contention, the Court of Appeals has rejected the assertion that waivers of the right to appeal should be invalid per se ( see People v. Thomas , 34 N.Y.3d 545, 557-558, 558 n. 1, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied ––– U.S. ––––, 140 S. Ct. 2634, 206 L.Ed.2d 512 [2020] ; People v. Seaberg , 74 N.Y.2d 1, 8-9, 543 N.Y.S.2d 968, 541 N.E.2d 1022 [1989] ). Even assuming, arguendo, that defendant's waiver of the right to appeal is invalid and therefore does not preclude our review of his challenge to the severity of his sentence ( see People v. Viehdeffer , 189 A.D.3d 2143, 2144, 134 N.Y.S.3d 906 [4th Dept. 2020] ; People v. Love , 181 A.D.3d 1193, 1193, 118 N.Y.S.3d 475 [4th Dept. 2020] ), we conclude that the sentence is not unduly harsh or severe.