| People v Dilley |
| 2015 NY Slip Op 08599 [133 AD3d 1380] |
| November 20, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vRickey F. Dilley, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Barbara J. Davies of counsel), fordefendant-appellant.
Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of counsel), forrespondent.
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 ofguilty, of criminal contempt in the first degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty ofcriminal 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 hissentence is unduly harsh and severe. Although we agree with defendant that the waiverof 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 waswaiving his right to appeal the severity of the sentence[ ]" (People v Doblinger, 117 AD3d1484, 1485 [2014]; seePeople v Maracle, 19 NY3d 925, 928 [2012]), we nevertheless perceive no basisin the record to disturb the sentence. We note that defendant has two prior felonyconvictions and showed no remorse for his conduct in this case.
We reject defendant's further contention that Supreme Court misstated the facts atsentencing 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 thepresentence report, which the court reviewed prior to sentencing, the victim stated thatdefendant yanked her by the hair and caused her head to strike the wall. In her victimimpact statement, the victim stated that her "head was split open from [her] left temple tothe middle of the top of [her] skull," and that she needed 35 staples and 27 stitches toclose the wound. Although defendant told the police that the victim lost her balancewhen she "came swinging" at him and then struck her head on the wall, the court was notobligated to accept defendant's exculpatory version of the incident.
Finally, defendant contends that the court, in setting the expiration date of the ordersof protection, failed to give him credit for the time he had served in jail on the chargeherein. 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 courtto fix the duration of the orders of protection at eight years from the date of sentencing.Present—Scudder, P.J., Centra, Peradotto, Lindley and Valentino, JJ.