THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. TAMELL MACK DEFENDANT APPELLANT (2015)

Supreme Court, Appellate Division, Fourth Department.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. TAMELL MACK, DEFENDANT–APPELLANT.

KA 12–01886

Decided: January 02, 2015

PRESENT: SMITH, J.P., PERADOTTO, CARNI, VALENTINO, AND DEJOSEPH, JJ.

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ERIC T. GLYNN OF COUNSEL), FOR DEFENDANT–APPELLANT. FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID PANEPINTO OF COUNSEL), FOR RESPONDENT.

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 burglary in the third degree (Penal Law § 140.20). We agree with defendant that his waiver of the right to appeal does not encompass his challenge to the severity of the sentence (see People v. Maracle, 19 NY3d 925, 928). Although defendant executed a written waiver of the right to appeal, there was no colloquy between Supreme Court 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 (see generally People v. Carno, 101 AD3d 1663, 1663–1664, lv. denied 20 NY3d 1060). We nevertheless conclude that the sentence is not unduly harsh or severe.

Frances E. Cafarell

Clerk of the Court

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