Opinion
1172 KA 16–02093
12-20-2019
The PEOPLE of the State of New York, Respondent, v. Stacy R. MOSS, Defendant–appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF COUNSEL), FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF COUNSEL), FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of three counts of robbery in the third degree ( Penal Law § 160.05 ), one count of grand larceny in the third degree (§ 155.35[1] ), and one count of grand larceny in the fourth degree (§ 155.30[1] ). We agree with defendant that his waiver of the right to appeal does not encompass his challenge to the severity of the sentence because "[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. Morgan , 149 A.D.3d 1560, 1560, 51 N.Y.S.3d 462 [4th Dept. 2017], lv denied 29 N.Y.3d 1083, 64 N.Y.S.3d 173, 86 N.E.3d 260 [2017] [internal quotation marks omitted]; see generally People v. Maracle , 19 N.Y.3d 925, 927–928, 950 N.Y.S.2d 498, 973 N.E.2d 1272 [2012] ). Moreover, although defendant signed a written waiver of the right to appeal, the written waiver failed to state that defendant was waiving his right to appeal his sentence (see People v. Tomeno , 141 A.D.3d 1120, 1121, 33 N.Y.S.3d 920 [4th Dept. 2016], lv denied 28 N.Y.3d 974, 43 N.Y.S.3d 262, 66 N.E.3d 8 [2016] ). Nevertheless, we conclude that the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.