Opinion
02-03-2017
The PEOPLE of the State of New York, Respondent, v. James A. COOK, Defendant–Appellant.
Leanne Lapp, Public Defender, Canandaigua (Robert Tucker of Counsel), for Defendant–Appellant. R. Michael Tantillo, District Attorney, Canandaigua (Heather Parker Hines of Counsel), for Respondent.
Leanne Lapp, Public Defender, Canandaigua (Robert Tucker of Counsel), for Defendant–Appellant.
R. Michael Tantillo, District Attorney, Canandaigua (Heather Parker Hines of Counsel), for Respondent.
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, NEMOYER, AND TROUTMAN, JJ.
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 the right to appeal from his conviction does not encompass his challenge to the severity of the sentence and thus does not foreclose our review of that challenge (see People v. Maracle, 19 N.Y.3d 925, 927–928, 950 N.Y.S.2d 498, 973 N.E.2d 1272 ; People v. Tomeno, 141 A.D.3d 1120, 1120–1121, 33 N.Y.S.3d 920, lv. denied 28 N.Y.3d 974, 43 N.Y.S.3d 262, 66 N.E.3d 8 ). County Court failed to advise defendant during the course of the allocution that he was waiving his right to appeal any issue concerning the severity of the sentence (see People v. Banks, 125 A.D.3d 1276, 1277, 2 N.Y.S.3d 714, lv. denied 25 N.Y.3d 1159, 15 N.Y.S.3d 291, 36 N.E.3d 94 ). Further, "[a]lthough defendant executed a written waiver of the right to appeal, there was no colloquy between [the c]ourt and defendant regarding the written waiver to ensure that defendant read and understood it and that he was waiving his right to challenge the length of the sentence" (People v. Mack, 124 A.D.3d 1362, 1363, 997 N.Y.S.2d 586 ). We nevertheless reject defendant's contention that the sentence is unduly harsh and severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.