| People v Avellino |
| 2014 NY Slip Op 05277 [119 AD3d 1449] |
| July 11, 2014 |
| Appellate Division, Fourth Department |
[*1]
| 1 The People of the State of New York, Respondent, vAndrew Avellino, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Barbara J. Davies of counsel), fordefendant-appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Ashley R. Small of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (M. William Boller,A.J.), rendered July 9, 2012. The judgment convicted defendant, upon his plea of guilty,of burglary in the third degree and criminal possession of stolen property in the fourthdegree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea ofguilty of burglary in the third degree (Penal Law § 140.20) and criminalpossession of stolen property in the fourth degree (§ 165.45 [1]). We agreewith defendant that his waiver of the right to appeal does not encompass his challenge tothe severity of the sentence. Although "it is evident that defendant waived [his] right toappeal [his] conviction, there is no indication in the record that defendant waivedthe right to appeal the harshness of [his] sentence" (People v Maracle, 19 NY3d925, 928 [2012]; see Peoplev Pimentel, 108 AD3d 861, 862 [2013], lv denied 21 NY3d 1076[2013]). Furthermore, "[a]lthough the record establishes that defendant executed awritten waiver of the right to appeal, there was no colloquy between [Supreme] Courtand defendant regarding the waiver of the right to appeal to ensure that" defendant wasaware that it encompassed his challenge to the severity of the sentence (People v Carno, 101 AD3d1663, 1664 [2012], lv denied 20 NY3d 1060 [2013]; see generally People vBradshaw, 18 NY3d 257, 264-266 [2011]). We nevertheless conclude that thesentence is not unduly harsh or severe. Present—Scudder, P.J., Smith, Peradotto,Sconiers and Whalen, JJ.