Opinion
1286 KA 16–02358
12-21-2018
The PEOPLE of the State of New York, Respondent, v. Frizell AUGHTRY, Defendant–Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (TIMOTHY P. MURPHY OF COUNSEL), FOR DEFENDANT–APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DANIEL J. PUNCH OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (TIMOTHY P. MURPHY OF COUNSEL), FOR DEFENDANT–APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DANIEL J. PUNCH OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., PERADOTTO, CARNI, NEMOYER, AND WINSLOW, JJ.
MEMORANDUM AND ORDERAppeal from a judgment of the Supreme Court, Erie County (Penny M. Wolfgang, J.), rendered November 16, 2016. The judgment convicted defendant, upon his plea of guilty, of burglary in the third degree (three counts).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a plea of guilty of three counts of burglary in the third degree ( Penal Law § 140.20 ). We agree with defendant that his waiver of the right to appeal his conviction does not encompass his challenge to the severity of the sentence (see People v. Maracle, 19 N.Y.3d 925, 928, 950 N.Y.S.2d 498, 973 N.E.2d 1272 [2012] ). Supreme Court advised defendant that he was not waiving his right to appeal an illegal sentence but failed to clarify during the course of the allocution that he was waiving his right to appeal any issue concerning the severity of the sentence (see generally People v. Banks, 125 A.D.3d 1276, 1277, 2 N.Y.S.3d 714 [4th Dept. 2015], lv denied 25 N.Y.3d 1159, 15 N.Y.S.3d 291, 36 N.E.3d 94 [2015] ). Further, "[a]lthough defendant executed a written waiver of the right to appeal, there was no colloquy between [the c]ourt and defendant regarding the written waiver to ensure that defendant read and understood it and that he was waiving his right to challenge the length of the sentence" ( People v. Mack, 124 A.D.3d 1362, 1363, 997 N.Y.S.2d 586 [4th Dept. 2015] ; see generally People v. Carno, 101 A.D.3d 1663, 1663–1664, 955 N.Y.S.2d 786 [4th Dept. 2012], lv denied 20 N.Y.3d 1060, 962 N.Y.S.2d 611, 985 N.E.2d 921 [2013] ). We nevertheless conclude that the sentence is not unduly harsh or severe.