Opinion
2014-02-14
The PEOPLE of the State of New York, Respondent, v. Thomas J. DeMARCO, Defendant–Appellant.
Appeal from a judgment of the Cattaraugus County Court (William H. Mountain, III, A.J.), rendered November 26, 2012. The judgment convicted defendant, upon his plea of guilty, of aggravated driving while intoxicated, a class E felony, and aggravated unlicensed operation of a motor vehicle in the second degree. The Legal Aid Bureau of Buffalo, Inc., Buffalo (Nicholas P. Difonzo of Counsel), for Defendant–Appellant. Lori Pettit Rieman, District Attorney, Little Valley (Kelly M. Balcom of Counsel), for Respondent.
Appeal from a judgment of the Cattaraugus County Court (William H. Mountain, III, A.J.), rendered November 26, 2012. The judgment convicted defendant, upon his plea of guilty, of aggravated driving while intoxicated, a class E felony, and aggravated unlicensed operation of a motor vehicle in the second degree.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Nicholas P. Difonzo of Counsel), for Defendant–Appellant. Lori Pettit Rieman, District Attorney, Little Valley (Kelly M. Balcom of Counsel), for Respondent.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon his plea of guilty of, inter alia, aggravated driving while intoxicated (Vehicle and Traffic Law §§ 1192[2–a][a]; 1193[1][c][i] ). We agree with defendant that the waiver of the right to appeal does not encompass his challenge to the severity of the sentence because “no mention was made on the record during the course of the allocution” that he was also waiving his right to appeal any issue concerning the severity of the sentence ( People v. Pimentel, 108 A.D.3d 861, 862, 969 N.Y.S.2d 574,lv. denied 21 N.Y.3d 1076, 974 N.Y.S.2d 325, 997 N.E.2d 150;see People v. Maracle, 19 N.Y.3d 925, 928, 950 N.Y.S.2d 498, 973 N.E.2d 1272). We nevertheless conclude that the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed. SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, and WHALEN, JJ., concur.