People v. Diaz

• Decision Date: 22 August 2018
• Docket Number: 2016–11796,2016–11797,S.C.I. Nos. 15-00831, 15-00833
• Citation: 164 A.D.3d 829,79 N.Y.S.3d 562 (Mem)
• Parties: The PEOPLE, etc., respondent, v. Brian DIAZ, appellant.
• Court: New York Supreme Court — Appellate Division

164 A.D.3d 829
79 N.Y.S.3d 562 (Mem)

The PEOPLE, etc., respondent,
v.
Brian DIAZ, appellant.

2016–11796
2016–11797
S.C.I. Nos. 15-00831, 15-00833

Supreme Court, Appellate Division, Second Department, New York.

Submitted—April 23, 2018
August 22, 2018

Marianne Karas, Thornwood, NY, for appellant.

Anthony A. Scarpino, Jr., District Attorney, White Plains, N.Y. (John J. Carmody and Raffaelina Gianfrancesco of counsel), for respondent.

SHERI S. ROMAN, J.P., JEFFREY A. COHEN, ROBERT J. MILLER, JOSEPH J. MALTESE, JJ.

79 N.Y.S.3d 563

DECISION & ORDER

Appeals by the defendant from two amended judgments of the Supreme Court, Westchester County (Susan Cacace, J.), both rendered October 11, 2016, revoking sentences of probation previously imposed by the same court, upon a finding that he violated conditions thereof, upon his admissions, and imposing sentences of imprisonment upon his previous convictions of sexual abuse in the first degree under Superior Court Information No. 15–00831 and disseminating indecent material to minors in the first degree under Superior Court Information No. 15–00833.

ORDERED that the amended judgments are affirmed.

The defendant did not appeal from the original judgments convicting him, upon his pleas of guilty, of sexual abuse in the first degree and disseminating indecent material to minors in the first degree. On these appeals from the amended judgments, the defendant is foreclosed from challenging the propriety of the original judgments, including, inter alia, his claims as to the validity of his pleas of guilty and the effectiveness of his counsel (see People v. Hazel, 145 A.D.3d 797, 798, 42 N.Y.S.3d 358 ; People v. Sansone, 65 A.D.3d 636, 637, 883 N.Y.S.2d 726 ; People v. Trias, 50 A.D.3d 828, 854 N.Y.S.2d 777 ).

Although, contrary to the defendant's contention, he validly waived his right to appeal from the amended judgments (see People v. Sanders, 25 N.Y.3d 337, 341–342, 12 N.Y.S.3d 593, 34 N.E.3d 344 ; People v. Brown, 122 A.D.3d 133, 142, 992 N.Y.S.2d 297 ), the waiver does not preclude appellate review of his...