People v. Arriaza-Ortega

People v Arriaza-Ortega (2023 NY Slip Op 02886) People v Arriaza-Ortega 2023 NY Slip Op 02886 Decided on May 31, 2023 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on May 31, 2023 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department FRANCESCA E. CONNOLLY, J.P. VALERIE BRATHWAITE NELSON JOSEPH J. MALTESE LINDA CHRISTOPHER, JJ. 2022-04025 (Ind. No. 164/20) [*1]The People of the State of New York, respondent, v Jose Arriaza-Ortega, appellant. James D. Licata, New City, NY (Lois Cappelletti of counsel), for appellant. Thomas E. Walsh II, District Attorney, New City, NY (Carrie A. Ciganek of counsel), for respondent. DECISION & ORDER Appeal by the defendant from a judgment of the County Court, Rockland County (Kevin F. Russo, J.), rendered August 10, 2021, convicting him of assault in the second degree, upon his plea of guilty, and imposing sentence. ORDERED that the judgment is affirmed. Contrary to the People's contention, the defendant did not validly waive his right to appeal the excessiveness of the sentence imposed (see People v Moye, 164 AD3d 698, 698; People v Boswell, 35 AD3d 1218). During the plea allocution, the County Court expressly excluded a challenge to the excessiveness of the sentence imposed from the challenges foreclosed by the waiver of the right to appeal by telling the defendant that he was giving up his right to appeal, with the exception of challenging the excessiveness of his sentence (see People v Moye, 164 AD3d at 698). Nevertheless, the sentence imposed was not excessive (see People v Suitte, 90 AD2d 80). CONNOLLY, J.P., BRATHWAITE NELSON, MALTESE and CHRISTOPHER, JJ., concur. ENTER: Maria T. Fasulo Clerk of the Court