Opinion
2015-01-2
The PEOPLE of the State of New York, Respondent, v. Willie MARTIN, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Claire H. Fortin of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Ashley R. Small of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Claire H. Fortin of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Ashley R. Small of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., CENTRA, CARNI, and SCONIERS, JJ.
MEMORANDUM:
On appeal from a judgment convicting him upon his plea of guilty of attempted robbery in the second degree (Penal Law §§ 110.00, 160.10[2] [b] ), defendant contends that the waiver of the right to appeal is invalid and challenges the severity of the sentence. Although defendant knowingly, voluntarily and intelligently waived the right to appeal ( see generally People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145), we nevertheless agree with defendant that the waiver does not preclude his challenge to the severity of the sentence. “While it is evident that defendant waived [his] right to appeal [his] conviction, there is no indication in the record that defendant waived the right to appeal the harshness of [his] sentence ” (People v. Maracle, 19 N.Y.3d 925, 928, 950 N.Y.S.2d 498, 973 N.E.2d 1272; see People v. Peterson, 111 A.D.3d 1412, 1412, 974 N.Y.S.2d 864). On the merits, we conclude that the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.