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

1250
KA 14-00339
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

RICKEY F. DILLEY, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (BARBARA J. DAVIES OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Deborah
A. Haendiges, J.), rendered January 21, 2014. The judgment convicted
defendant, upon his plea of guilty, of criminal contempt in the first
degree.

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

      Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of criminal contempt in the first degree (Penal Law §
215.51 [b] [v]), defendant contends that his waiver of the right to
appeal is unenforceable and that his sentence is unduly harsh and
severe. Although we agree with defendant that the waiver of the right
to appeal does not encompass his challenge to the severity of his
sentence “inasmuch as there is no indication in the record of the plea
allocution that defendant was waiving his right to appeal the severity
of the sentence[]” (People v Doblinger, 117 AD3d 1484, 1485; see
People v Maracle, 19 NY3d 925, 928), we nevertheless perceive no basis
in the record to disturb the sentence. We note that defendant has two
prior felony convictions and showed no remorse for his conduct in this
case.

     We reject defendant’s further contention that Supreme Court
misstated the facts at sentencing by stating that “this was a very
violent event” and that defendant presented “serious safety concerns”
for the victim and the community at large. According to the
presentence report, which the court reviewed prior to sentencing, the
victim stated that defendant yanked her by the hair and caused her
head to strike the wall. In her victim impact statement, the victim
stated that her “head was split open from [her] left temple to the
middle of the top of [her] skull,” and that she needed 35 staples and
27 stitches to close the wound. Although defendant told the police
                                 -2-                          1250
                                                         KA 14-00339

that the victim lost her balance when she “came swinging” at him and
then struck her head on the wall, the court was not obligated to
accept defendant’s exculpatory version of the incident.

     Finally, defendant contends that the court, in setting the
expiration date of the orders of protection, failed to give him credit
for the time he had served in jail on the charge herein. That
contention is unpreserved for our review (see CPL 470.05 [2]) and, in
any event, it is without merit inasmuch as CPL 530.12 (5) (A) (i)
authorized the court to fix the duration of the orders of protection
at eight years from the date of sentencing.




Entered:   November 20, 2015                    Frances E. Cafarell
                                                Clerk of the Court
