BANKS, SHYTRECE, PEOPLE v

Opinion

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department

445 KA 12-01875 PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, LINDLEY, AND VALENTINO, JJ.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

V MEMORANDUM AND ORDER

SHYTRECE BANKS, DEFENDANT-APPELLANT.

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (BARBARA J. DAVIES OF COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. SMALL OF COUNSEL), FOR RESPONDENT.

Appeal from a judgment of the Supreme Court, Erie County (Christopher J. Burns, J.), rendered September 4, 2012. The judgment convicted defendant, upon her plea of guilty, of grand larceny in the third degree and criminal possession of a controlled substance in the third degree.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting her upon her plea of guilty of grand larceny in the third degree (Penal Law § 155.35) and criminal possession of a controlled substance in the third degree (§ 220.16 [12]). We agree with defendant that the waiver of the right to appeal does not encompass her challenge to the severity of the sentence inasmuch as “ ‘no mention was made on the record during the course of the allocution concerning the waiver of defendant’s right to appeal’ with respect to [her] conviction that [she] was also waiving [her] right to appeal any issue concerning the severity of the sentence” (People v Peterson, 111 AD3d 1412, 1412; see People v Maracle, 19 NY3d 925, 928). We nevertheless conclude that the sentence is not unduly harsh or severe.

Entered: May 2, 2014 Frances E. Cafarell Clerk of the Court