Opinion
1134 KA 17–01078
11-15-2019
The PEOPLE of the State of New York, Respondent, v. Derrick W. MCDERMID, Defendant–Appellant.
PETER J. DIGIORGIO, JR., UTICA, FOR DEFENDANT–APPELLANT. LEANNE K. MOSER, DISTRICT ATTORNEY, LOWVILLE, D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR RESPONDENT.
PETER J. DIGIORGIO, JR., UTICA, FOR DEFENDANT–APPELLANT.
LEANNE K. MOSER, DISTRICT ATTORNEY, LOWVILLE, D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, CARNI, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
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, manslaughter in the first degree ( Penal Law § 125.20[4] ) and assault in the first degree
(§ 120.10[3] ). We agree with defendant that his oral 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 [2012] ; People v. Tomeno, 141 A.D.3d 1120, 1120, 33 N.Y.S.3d 920 [4th Dept. 2016], lv denied 28 N.Y.3d 974, 43 N.Y.S.3d 262, 66 N.E.3d 8 [2016] ). Although defendant also executed a written waiver of the right to appeal, that waiver failed to state that defendant was waiving his right to appeal the severity of the sentence (see Tomeno, 141 A.D.3d at 1121, 33 N.Y.S.3d 920 ). Contrary to defendant's contention, however, the sentence is not unduly harsh or severe. Defendant's further contention that the sentence constitutes cruel and unusual punishment is not preserved for our review (see People v. Pena, 28 N.Y.3d 727, 730, 71 N.E.3d 930 [2017] ), and we decline to exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15[3][c] ).
We have reviewed defendant's remaining contentions and conclude that none warrants reversal or modification of the judgment.