People v. Mack

124 A.D.3d 1362, 997 N.Y.S.2d 586

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 2, 2015
• Status: Published

Opinion

Appeal from a judgment of the Supreme Court, Erie County (M. William Boiler, A.J.), rendered June 22, 2012. The judgment convicted defendant, upon his plea of guilty, of burglary 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 burglary in the third degree (Penal Law § 140.20). We agree with defendant that his waiver of the right to appeal does not encompass his challenge to the severity of the sentence (see People v Maracle, 19 NY3d 925, 928 [2012]). Although defendant executed a written waiver of the right to appeal, there was no colloquy between Supreme Court and defendant regarding the written waiver to ensure that defendant read and understood it and that he was waiving his right to challenge the length of the sentence (see generally People v Carno, 101 AD3d 1663, 1663-1664 [2012], lv denied 20 NY3d 1060 [2013]). We nevertheless conclude that the sentence is not unduly harsh or severe.

Present — Smith, J.P., Peradotto, Carni, Valentino and DeJoseph, JJ.