Opinion
KA 16–02357 138
02-08-2019
The PEOPLE of the State of New York, Respondent, v. Leah GIGLIOTTI, Defendant–Appellant.
BRIDGET L. FIELD, ROCHESTER, FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (STEPHEN X. O'BRIEN OF COUNSEL), FOR RESPONDENT.
BRIDGET L. FIELD, ROCHESTER, FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (STEPHEN X. O'BRIEN OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CENTRA, DEJOSEPH, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting her upon her plea of guilty of kidnapping in the second degree ( Penal Law § 135.20 ). We agree with defendant that her waiver of the right to appeal does not encompass her challenge to the severity of the sentence. "[N]o mention was made on the record during the course of the allocution concerning the waiver of defendant's right to appeal [her] conviction that [she] was also waiving [her] right to appeal any issue concerning the severity of the sentence" ( People v. Testerman, 149 A.D.3d 1559, 1559, 52 N.Y.S.3d 789 [4th Dept. 2017] [internal quotation marks omitted]; see People v. Lorenz, 119 A.D.3d 1450, 1450, 988 N.Y.S.2d 904 [4th Dept. 2014], lv denied 24 N.Y.3d 962, 996 N.Y.S.2d 222, 20 N.E.3d 1002 [2014] ). 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 [written] waiver of the right to appeal to ensure that’ defendant was aware that it encompassed [her] challenge to the severity of the sentence" ( People v. Avellino, 119 A.D.3d 1449, 1449–1450, 988 N.Y.S.2d 834 [4th Dept. 2014] ). Nonetheless, we conclude that the negotiated sentence is not unduly harsh or severe. Defendant was charged by indictment with, inter alia, four counts of kidnapping in the first degree, a class A–I felony. She was permitted to plead guilty to one count of kidnapping in the second degree with the understanding that she would receive the agreed-upon sentence.