People v. Delacruz

180 N.Y.S.3d 916 (Mem)

The PEOPLE, etc., respondent,

v.Juan DELACRUZ, appellant.

2020–00242

Ind. No. 6159/18

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

Submitted—January 11, 2023

February 1, 2023

Patricia Pazner, New York, NY (David Fitzmaurice of counsel), for appellant.

Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Julian Joiris, and Sawyer White of counsel), for respondent.

MARK C. DILLON, J.P., LINDA CHRISTOPHER, WILLIAM G. FORD, JANICE A. TAYLOR, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Barry E. Warhit, J.), rendered December 4, 2019, convicting him of attempted burglary in the second degree and stalking in the third degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that his sentence constitutes cruel and unusual punishment is unpreserved for appellate review (see People v. Pena, 28 N.Y.3d 727, 730, 49 N.Y.S.3d 342, 71 N.E.3d 930 ; People v. Rolling, 186 A.D.3d 1264, 1265, 127 N.Y.S.3d 874 ). In any event, his sentence is constitutional (see People v. Rolling, 186 A.D.3d at 1265, 127 N.Y.S.3d 874 ; People v. Parsley, 150 A.D.3d 894, 896, 55 N.Y.S.3d 267 ).

The defendant validly waived his right to appeal (see People v. Lopez, 6 N.Y.3d 248, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Williams, 203 A.D.3d 850, 851, 160 N.Y.S.3d 899 ). His valid waiver of his right to appeal precludes review of his excessive sentence claim (see People v. Batista, 167 A.D.3d 69, 75, 86 N.Y.S.3d 492 ).

DILLON, J.P., CHRISTOPHER, FORD and TAYLOR, JJ., concur.