Opinion
1321 KA 11-00709.
12-31-2015
The PEOPLE of the State of New York, Respondent, v. Dwight FOWLER, Defendant–Appellant.
Davison Law Office, PLLC, Canandaigua (Mark C. Davison of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Stephen X. O'Brien of Counsel), for Respondent.
Davison Law Office, PLLC, Canandaigua (Mark C. Davison of Counsel), for Defendant–Appellant.
Sandra Doorley, District Attorney, Rochester (Stephen X. O'Brien of Counsel), for Respondent.
Opinion
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), defendant contends that the waiver of the right to appeal is not valid and challenges the severity of the sentence. We agree with defendant that his waiver of the right to appeal does not encompass his challenge to the severity of the sentence because “no mention was made on the record during the course of the allocution concerning the waiver of defendant's right to appeal his conviction that he was also waiving his right to appeal the harshness of his sentence” (People v. Pimentel, 108 A.D.3d 861, 862, 969 N.Y.S.2d 574, lv. denied 21 N.Y.3d 1076, 974 N.Y.S.2d 325, 997 N.E.2d 150, citingPeople v. Maracle, 19 N.Y.3d 925, 928, 950 N.Y.S.2d 498, 973 N.E.2d 1272). Nevertheless, we conclude that the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
SCUDDER, P.J., SMITH, VALENTINO, WHALEN, and DeJOSEPH, JJ., concur.