Opinion
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.
MEMORANDUM AND ORDER 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, 140 N.Y.S.3d 433, 164 N.E.3d 239 [2020] ; People v. Thomas , 34 N.Y.3d 545, 565-566, 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. Lovines , 208 A.D.3d 1639, 1639, 174 N.Y.S.3d 664 [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, 143 N.Y.S.3d 591 [2d Dept. 2021], lv denied 37 N.Y.3d 972, 150 N.Y.S.3d 692, 172 N.E.3d 805 [2021] ; People v. Vasquez , 168 A.D.3d 1185, 1186, 90 N.Y.S.3d 708 [3d Dept. 2019], lv denied 33 N.Y.3d 954, 100 N.Y.S.3d 184, 210, 123 N.E.3d 843, 869 [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] ).