Opinion
12-23-2016
The PEOPLE of the State of New York, Respondent, v. Bernard GRUCZA, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Timothy P. Murphy of Counsel), for Defendant–Appellant. Bernard Grucza, Defendant–Appellant Pro Se. Michael J. Flaherty, Jr., Acting District Attorney, Buffalo (David A. Heraty of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Timothy P. Murphy of Counsel), for Defendant–Appellant.
Bernard Grucza, Defendant–Appellant Pro Se.
Michael J. Flaherty, Jr., Acting District Attorney, Buffalo (David A. Heraty of Counsel), for Respondent.
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM:Defendant appeals from a judgment convicting him upon his plea of guilty of manslaughter in the first degree (Penal Law § 125.20[1] ). We agree with defendant's contention in his main and pro se supplemental briefs that his waiver of the right to appeal does not encompass his challenge to the severity of the sentence. "[N]o mention was made on the record during the course of the allocution concerning the waiver of defendant's right to appeal his conviction that he was also waiving his right to appeal the harshness of his 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, citing People v. Maracle, 19 N.Y.3d 925, 928, 950 N.Y.S.2d 498, 973 N.E.2d 1272 ; see People v. Gibson, 134 A.D.3d 1517, 1518, 21 N.Y.S.3d 905, lv. denied 27 N.Y.3d 1069, 38 N.Y.S.3d 839, 60 N.E.3d 1205 ). Although defendant executed a written waiver of the right to appeal in which he waived "all aspects of [the] case, including the sentence," we conclude that the written waiver "does not foreclose our review of the severity of the sentence because ‘[Supreme Court] did not inquire of defendant whether he understood the written waiver or whether he had even read the waiver before signing it’ " (People v. Donaldson, 130 A.D.3d 1486, 1486–1487, 13 N.Y.S.3d 741, quoting People v. Bradshaw, 18 N.Y.3d 257, 262, 938 N.Y.S.2d 254, 961 N.E.2d 645 ). We nevertheless reject defendant's contention in his main and pro se supplemental briefs that the bargained-for sentence is unduly harsh and severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.