| People v Donaldson |
| 2015 NY Slip Op 05824 [130 AD3d 1486] |
| July 2, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vDevauhn Donaldson, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Karen C. Russo-McLaughlin ofcounsel), for defendant-appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Donna A. Milling of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (M. William Boller,A.J.), rendered May 24, 2013. The judgment convicted defendant, upon his plea ofguilty, of attempted robbery in the second degree.
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 attempted robbery in the second degree (Penal Law§§ 110.00, 160.10 [2] [b]). We agree with defendant that his waiver ofthe right to appeal does not encompass his challenge to the severity of the sentenceinasmuch as Supreme Court did not explain during the course of the allocutionconcerning the waiver of the right to appeal that he was waiving the right to appeal anyissue regarding the severity of the sentence (see People v Maracle, 19 NY3d 925, 928 [2012]; People v Peterson, 111 AD3d1412, 1412 [2013]). Furthermore, although the written waiver of the right to appealspecifically encompassed any challenge to the sentence, the written waiver does notforeclose our review of the severity of the sentence because "[t]he court did not inquireof defendant whether he understood the written waiver or whether he had even read thewaiver before signing it" (People v Bradshaw, 18 NY3d 257, 262 [2011]; see People v Elmer, 19 NY3d501, 510 [2012]). We nevertheless conclude that the enhanced sentence is notunduly harsh or severe. Although the court advised defendant at the time of the plea thatit would sentence him to a split sentence of local incarceration and probation, thatcommitment was predicated on defendant's compliance with the conditions that, interalia, he cooperate with and be truthful during his presentence interview with theProbation Department and that he appear at all court appearances, and defendant failed tocomply with those conditions. Present—Scudder, P.J., Carni, Lindley, Valentinoand Whalen, JJ.