People v Damon

People v Damon 2019 NY Slip Op 00737 Decided on February 1, 2019 Appellate Division, Fourth 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 February 1, 2019 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, DEJOSEPH, AND NEMOYER, JJ.
153 KA 17-02223

[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

v

KAYLA M. DAMON, DEFENDANT-APPELLANT.

DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (THERESA L. PREZIOSO OF COUNSEL), FOR DEFENDANT-APPELLANT.

CAROLINE A. WOJTASZEK, DISTRICT ATTORNEY, LOCKPORT (MARY-JEAN BOWMAN OF COUNSEL), FOR RESPONDENT.

Appeal from a judgment of the Niagara County Court (Matthew J. Murphy, III, J.), rendered November 20, 2017. The judgment convicted defendant, upon her plea of guilty, of rape in the second degree.

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

Memorandum: Defendant appeals from a judgment convicting her, upon her plea of guilty, of rape in the second degree (Penal Law

§ 130.30 [1]). Defendant validly waived her right to appeal, and that waiver forecloses her challenge to the severity of her sentence (see People v Alfiere, 156 AD3d 1445, 1445-1446 [4th Dept 2017], lv denied 31 NY3d 980 [2018]). Finally, we note that the "certificate of disposition" incorrectly states that County Court assessed only a $325 "surcharge" at sentencing. In fact, the court assessed a $300 mandatory surcharge, a $50 DNA databank fee, a $25 crime victim assistance fee, a $50 sex offender registration fee, and a $1,000 supplemental sex offender victim fee, and the certificate must be amended accordingly (see People v Cutaia, 167 AD3d 1534, 1536 [4th Dept 2018]).

Entered: February 1, 2019

Mark W. Bennett

Clerk of the Court