Opinion
343 KA 15–01388
03-16-2018
The PEOPLE of the State of New York, Respondent, v. Kevin MILLER, Defendant–Appellant.
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (CARA A. WALDMAN OF COUNSEL), FOR DEFENDANT–APPELLANT. R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (JEFFERY R. FRIESEN OF COUNSEL), FOR RESPONDENT.
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (CARA A. WALDMAN OF COUNSEL), FOR DEFENDANT–APPELLANT.
R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (JEFFERY R. FRIESEN OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, DEJOSEPH, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
Memorandum:Defendant appeals from a judgment convicting him upon his plea of guilty of, inter alia, two counts of criminal sale of a controlled substance in the third degree ( Penal Law § 220.39[1] ). We agree with defendant 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. Grucza, 145 A.D.3d 1505, 1506, 45 N.Y.S.3d 722 [4th Dept. 2016] ; see People v. Maracle, 19 N.Y.3d 925, 928, 950 N.Y.S.2d 498, 973 N.E.2d 1272 [2012] ). "Furthermore, ‘[a]lthough the record establishes that defendant executed a written waiver of the right to appeal, there was no colloquy between [County] Court and defendant regarding the waiver of the right to appeal to ensure that’ defendant was aware that it encompassed his challenge to the severity of the sentence" ( People v. Avellino, 119 A.D.3d 1449, 1449–1450, 988 N.Y.S.2d 834 [4th Dept. 2014] ). 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.