| People v Tomeno |
| 2016 NY Slip Op 05296 [141 AD3d 1120] |
| July 1, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vChristopher T. Tomeno, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (Janet C. Somes 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 (Thomas E. Moran,J.), rendered November 24, 2014. The judgment convicted defendant, upon his plea ofguilty, of attempted robbery in the first 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 first degree (Penal Law §§ 110.00,160.15 [4]), for which he was sentenced to a determinate term of imprisonment of sixyears plus a period of postrelease supervision. We agree with defendant that his waiverof the right to appeal does not encompass his challenge to the severity of the sentencebecause "no mention was made on the record during the course of the allocutionconcerning the waiver of defendant's right to appeal his conviction that he was alsowaiving his right to appeal the harshness of his sentence" (People v Pimentel, 108 AD3d861, 862 [2013], lv denied 21 NY3d 1076 [2013]; see People v Maracle, 19NY3d 925, 928 [2012]). Moreover, although defendant signed a written waiver ofthe right to appeal, the written waiver failed to state that defendant was waiving his rightto appeal his sentence. Nevertheless, based on our review of the record, and consideringdefendant's criminal history, which includes prior felony convictions, we decline toexercise our power to modify the sentence as a matter of discretion in the interest ofjustice (see CPL 470.15 [6] [b]). Present—Centra, J.P., Lindley, DeJoseph,NeMoyer and Troutman, JJ.