People v Yao, 2023 NY Slip Op 00377 [212 AD3d 562]

January 26, 2023

Appellate Division, First Department

[*1]

The People of the State of New York, Respondent,

v

Davin Yao, Appellant.

Twyla Carter, The Legal Aid Society, New York (Désirée Sheridan of counsel), for appellant.

Alvin L. Bragg, Jr., District Attorney, New York (Christian Rose of counsel), for respondent.

Judgment, Supreme Court, New York County (Ronald A. Zweibel, J.), rendered August 18, 2016, convicting defendant, upon his plea of guilty, of unlawful surveillance in the second degree, and sentencing him to a term of four months, with five years’ probation, unanimously affirmed.

Defendant validly waived his right to appeal, which forecloses review of the sentencing court’s discretionary determination requiring him to register as a sex offender upon his conviction of unlawful surveillance ( see People v Thomas , 34 NY3d 545 , 559 [2019], cert denied 589 US —, 140 S Ct 2634 [2020]).

Regardless of whether defendant made a valid appeal waiver, we find that the court properly exercised its discretion in denying defendant’s request for an exemption from sex offender registration on his conviction of unlawful surveillance under Penal Law § 250.45 (4). Registration would not be “unduly harsh and inappropriate” (Correction Law § 168-a [2] [e]) under the circumstances of this case, in which defendant was caught in the act of taking photographs under a woman’s skirt, and police recovered numerous additional photos of the intimate parts of many other women from his phone, “rais[ing] concerns about defendant’s character and potential for recidivism” ( People v Simmons , 129 AD3d 520 , 521 [1st Dept 2015], lv denied 26 NY3d 903 [2015]). Concur—Friedman, J.P., Moulton, Kennedy, Pitt-Burke, JJ..