People v. Cheatham

Judgment unanimously affirmed. Memorandum: Defendant contends that Supreme Court failed to exercise its discretion in resentencing him following a violation of probation. Although defendant’s waiver of the right to appeal does not encompass defendant’s resentencing following a violation of probation (see, People v Rodriguez, 259 AD2d 1040), we conclude that the court did not fail to exercise its discretion in resentencing defendant (see, People v Wright, 239 AD2d 945; cf., People v Nicholson, 237 AD2d 973, lv denied 90 NY2d 908). Furthermore, the sentence is neither unduly harsh nor severe. (Appeal from Judgment of Supreme Court, Erie County, Tills, J. — Violation of Probation.) Present — Pigott, Jr., P. J., Hurlbutt, Kehoe and Lawton, JJ.