Opinion
1220 KA 17–01807
12-20-2019
The PEOPLE of the State of New York, Respondent, v. Nickeisha S. LANE, Defendant–Appellant.
CHARLES J. GREENBERG, AMHERST, FOR DEFENDANT–APPELLANT. MARK S. SINKIEWICZ, ACTING DISTRICT ATTORNEY, WATERLOO, FOR RESPONDENT.
CHARLES J. GREENBERG, AMHERST, FOR DEFENDANT–APPELLANT.
MARK S. SINKIEWICZ, ACTING DISTRICT ATTORNEY, WATERLOO, FOR RESPONDENT.
PRESENT: CARNI, J.P., LINDLEY, CURRAN, WINSLOW, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
Memorandum: Defendant appeals from a judgment convicting her, upon her plea of guilty, of attempted promoting prison contraband in the first degree ( Penal Law §§ 110.00, 205.25[1] ). We agree with defendant that her waiver of the right to appeal does not encompass her 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] ) inasmuch as County Court "failed to advise defendant during the course of the allocution that [she] was waiving [her] right to appeal any issue concerning the severity of the sentence" ( People v. Cook, 147 A.D.3d 1387, 1387, 47 N.Y.S.3d 542 [4th Dept. 2017], lv denied 29 N.Y.3d 996, 57 N.Y.S.3d 718, 80 N.E.3d 411 [2017] ). Further, although defendant executed a written waiver of the right to appeal, there was no colloquy between the court and defendant regarding the written waiver to ensure that she read and understood it and that she was waiving her right to challenge the severity of the sentence (see People v. Mack, 124 A.D.3d 1362, 1363, 997 N.Y.S.2d 586 [4th Dept. 2015] ). We nevertheless conclude that the negotiated sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.