| People v Cook |
| 2017 NY Slip Op 00843 [147 AD3d 1387] |
| February 3, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v James A.Cook, Appellant. |
Leanne Lapp, Public Defender, Canandaigua (Robert Tucker of counsel), fordefendant-appellant.
R. Michael Tantillo, District Attorney, Canandaigua (Heather Parker Hines of counsel), forrespondent.
Appeal from a judgment of the Ontario County Court (William F. Kocher, J.), renderedJanuary 15, 2014. The judgment convicted defendant, upon his plea of guilty, of driving whileintoxicated, a class D felony, aggravated unlicensed operation of a motor vehicle in the firstdegree and endangering the welfare of a child (two counts).
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,inter alia, driving while intoxicated as a class D felony (Vehicle and Traffic Law§§ 1192 [3]; 1193 [1] [c] [ii]). We agree with defendant that the waiver of theright to appeal from his conviction does not encompass his challenge to the severity of thesentence and thus does not foreclose our review of that challenge (see People v Maracle, 19 NY3d925, 927-928 [2012]; People vTomeno, 141 AD3d 1120, 1120-1121 [2016], lv denied 28 NY3d 974 [2016]).County Court failed to advise defendant during the course of the allocution that he was waivinghis right to appeal any issue concerning the severity of the sentence (see People v Banks, 125 AD3d1276, 1277 [2015], lv denied 25 NY3d 1159 [2015]). Further, "[a]lthough defendantexecuted a written waiver of the right to appeal, there was no colloquy between [the c]ourt anddefendant regarding the written waiver to ensure that defendant read and understood it and thathe was waiving his right to challenge the length of the sentence" (People v Mack, 124 AD3d 1362,1363 [2015]). We nevertheless reject defendant's contention that the sentence is unduly harsh andsevere. Present—Whalen, P.J., Centra, Lindley, NeMoyer and Troutman, JJ.