Opinion
456 KA 11-02322
05-08-2015
The PEOPLE of the State of New York, Respondent, v. Eric F. McCLOUGH, Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester (Jane I. Yoon of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Daniel Gross of Counsel), for Respondent.
Timothy P. Donaher, Public Defender, Rochester (Jane I. Yoon of Counsel), for Defendant–Appellant.
Sandra Doorley, District Attorney, Rochester (Daniel Gross of Counsel), for Respondent.
Opinion
MEMORANDUM:Defendant appeals from a judgment convicting him upon his plea of guilty of robbery in the second degree (Penal Law § 160.10[2][a] ). 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 concerning the waiver of defendant's right to appeal his conviction” that he was also waiving his right to appeal 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., CARNI, LINDLEY, SCONIERS, and DeJOSEPH, JJ., concur.