People v. Mills

2017 NY Slip Op 4701, 151 A.D.3d 1739, 53 N.Y.S.3d 846

Opinion

Appeal from a judgment of the Monroe County Court (Vincent M. Dinolfo, J.), rendered April 4, 2014. The judgment convicted defendant, upon his plea of guilty, of rape 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 rape in the second degree (Penal Law § 130.30 [1]). We agree with defendant that the waiver of the right to appeal does not encompass his challenge to the severity of the sentence. “[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 [severity] of his sentence” (People v Pimentel, 108 AD3d 861, 862 [2013], lv denied 21 NY3d 1076 [2013]; see People v Maracle, 19 NY3d 925, 928 [2012]). Moreover, the written waiver of the right to appeal signed by defendant does not state that defendant was waiving his right to appeal his sentence. We nevertheless conclude that the sentence is not unduly harsh or severe.

Present — Centra, J.P., Peradotto, Carni, NeMoyer and Curran, JJ.