           SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

838
KA 15-00606
PRESENT: WHALEN, P.J., CENTRA, NEMOYER, TROUTMAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

MICHAEL TEDESCO, JR., DEFENDANT-APPELLANT.


ERICKSON WEBB SCOLTON & HAJDU, LAKEWOOD (LYLE T. HAJDU OF COUNSEL),
FOR DEFENDANT-APPELLANT.

MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO (DANIEL J.
PUNCH OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (M.
William Boller, A.J.), rendered February 20, 2015. The judgment
revoked defendant’s sentence of probation and imposed a sentence of
imprisonment.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment revoking the
sentence of probation imposed upon his conviction of criminal sale of
a controlled substance in the fourth degree (Penal Law § 220.34 [1])
and sentencing him to a determinate term of imprisonment, followed by
a period of postrelease supervision. Even assuming, arguendo, that
defendant executed a valid waiver of the right to appeal at the
underlying plea proceeding, 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 Russell, 133 AD3d
1231, 1231; People v Dexter, 71 AD3d 1504, 1504-1505, lv denied 14
NY3d 887). We further conclude, however, that the sentence imposed
upon defendant’s violation of probation is not unduly harsh or severe.




Entered:    October 7, 2016                        Frances E. Cafarell
                                                   Clerk of the Court
