| People v Fowler |
| 2015 NY Slip Op 09735 [134 AD3d 1529] |
| December 31, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vDwight Fowler, Appellant. |
Davison Law Office, PLLC, Canandaigua (Mark C. Davison of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Stephen X. O'Brien of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Francis A. Affronti,J.), rendered March 9, 2010. The judgment convicted defendant, upon his plea of guilty,of kidnapping in the second degree, criminal sexual act in the first degree and robbery inthe second degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of,inter alia, kidnapping in the second degree (Penal Law § 135.20), defendantcontends that the waiver of the right to appeal is not valid and challenges the severity ofthe sentence. We agree with defendant that his waiver of the right to appeal does notencompass his challenge to the severity of the sentence because "no mention was madeon the record during the course of the allocution concerning the waiver of defendant'sright to appeal his conviction that he was also waiving his right to appeal the harshnessof his sentence" (People vPimentel, 108 AD3d 861, 862 [2013], lv denied 21 NY3d 1076 [2013],citing People v Maracle, 19NY3d 925, 928 [2012]). Nevertheless, we conclude that the sentence is not undulyharsh or severe. Present—Scudder, P.J., Smith, Valentino, Whalen and DeJoseph,JJ.