Opinion
2014-07-11
The PEOPLE of the State of New York, Respondent, v. Andrew AVELLINO, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Barbara J. Davies of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Ashley R. Small of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Barbara J. Davies of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Ashley R. Small of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., SMITH, PERADOTTO, SCONIERS AND WHALEN, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon his plea of guilty of burglary in the third degree (Penal Law § 140.20) and criminal possession of stolen property in the fourth degree (§ 165.45[1] ). We agree with defendant that his waiver of the right to appeal does not encompass his challenge to the severity of the sentence. Although “it is evident that defendant waived [his] right to appeal [his] conviction, there is no indication in the record that defendant waived the right to appeal the harshness of [his] sentence ” ( People v. Maracle, 19 N.Y.3d 925, 928, 950 N.Y.S.2d 498, 973 N.E.2d 1272;see People v. Pimentel, 108 A.D.3d 861, 862, 969 N.Y.S.2d 574,lv. denied21 N.Y.3d 1076, 974 N.Y.S.2d 325, 997 N.E.2d 150). Furthermore, “[a]lthough the record establishes that defendant executed a written waiver of the right to appeal, there was no colloquy between [Supreme] Court and defendant regarding the waiver of the right to appeal to ensure that” defendant was aware that it encompassed his challenge to the severity of the sentence ( People v. Carno, 101 A.D.3d 1663, 1664, 955 N.Y.S.2d 786,lv. denied20 N.Y.3d 1060, 962 N.Y.S.2d 611, 985 N.E.2d 921;see generally People v. Bradshaw, 18 N.Y.3d 257, 264–266, 938 N.Y.S.2d 254, 961 N.E.2d 645). We nevertheless conclude that the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.