People v. DeMarco

Appellate Division of the Supreme Court of New York

People v. DeMarco

114 A.D.3d 1253, 980 N.Y.S.2d 857

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 14, 2014

StatusPublished

This text of 114 A.D.3d 1253 (People v. DeMarco) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. DeMarco, 114 A.D.3d 1253, 980 N.Y.S.2d 857 (N.Y. Ct. App. 2014).

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Opinion

Appeal from a judgment of the Cattaraugus County Court (William H. Mountain, III, A.J.), rendered November 26, 2012. The judgment convicted defendant, upon his plea of guilty, of aggravated driving while intoxicated, a class E felony, and aggravated unlicensed operation of a motor vehicle in the second degree.

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

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of, inter alia, aggravated driving while intoxicated (Vehicle and Traffic Law §§ 1192 [2-a] [a]; 1193 [1] [c] [i]). 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” that he was also waiving his right to appeal any issue concerning the severity of the sentence (People v Pimentel, 108 AD3d 861, 862 [2013], lv denied 21 NY3d 1076 [2013]; see People v Maracle, 19 NY3d 925, 928 [2012]). We nevertheless conclude that the sentence is not unduly harsh or severe. Present — Smith, J.E, Peradotto, Lindley, Valentino and Whalen, JJ.

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Appeal from a judgment of the Cattaraugus County Court (William H. Mountain, III, A.J.), rendered November 26, 2012. The judgment convicted defendant, upon his plea of guilty, of aggravated driving while intoxicated, a class E felony, and aggravated unlicensed operation of a motor vehicle in the second degree.

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

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of, inter alia, aggravated driving while intoxicated (Vehicle and Traffic Law §§ 1192 [2-a] [a]; 1193 [1] [c] [i]). 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” that he was also waiving his right to appeal any issue concerning the severity of the sentence (People v Pimentel, 108 AD3d 861, 862 [2013], lv denied 21 NY3d 1076 [2013]; see People v Maracle, 19 NY3d 925, 928 [2012]). We nevertheless conclude that the sentence is not unduly harsh or severe. Present — Smith, J.E, Peradotto, Lindley, Valentino and Whalen, JJ.

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Bluebook (online)

114 A.D.3d 1253, 980 N.Y.S.2d 857, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-demarco-nyappdiv-2014.

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