People v. Harper

124 A.D.3d 1373, 997 N.Y.S.2d 587

Opinion

Appeal from a judgment of the Supreme Court, Erie County (M. William Boiler, A.J.), rendered June 7, 2012. The judgment convicted defendant, upon his plea of guilty, of 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 him upon his plea of guilty of criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [12]). 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 any issue concerning the severity of the sentence (see People v Peterson, 111 AD3d 1412, 1412 [2013]; People v Pimentel, 108 AD3d 861, 862 [2013], lv denied 21 NY3d 1076 [2013]). We nevertheless conclude that the sentence is not unduly harsh or severe.

Present — Scudder, P.J., Smith, Garni, Lindley and Sconiers, JJ.