People v Evans, 2024 NY Slip Op 04037 [229 AD3d 1380]

July 26, 2024

Appellate Division, Fourth Department

[*1]

The People of the State of New York, Respondent,

v

Brandon Evans, Appellant.

The Legal Aid Bureau of Buffalo, Inc., Buffalo (Nicholas P. Difonzo of counsel), for defendant-appellant.

Michael J. Keane, Acting District Attorney, Buffalo (Daniel J. Punch of counsel), for respondent.

Appeal from a judgment of the Supreme Court, Erie County (Russell P. Buscaglia, A.J.), rendered March 11, 2019. The judgment convicted defendant, upon his plea of guilty, of criminal sexual act in the first degree.

It is hereby ordered that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of criminal sexual act in the first degree (Penal Law § 130.50 [4]). We agree with defendant that he did not validly waive his right to appeal ( see People v Franklin , 217 AD3d 1427 , 1427 [4th Dept 2023]; see generally People v Thomas , 34 NY3d 545 , 564-566 [2019], cert denied 589 US —, 140 S Ct 2634 [2020]). We nevertheless conclude that the sentence is not unduly harsh or severe. Present—Smith, J.P., Curran, Ogden, Nowak and DelConte, JJ..