THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. EDMUND SERWINOWSKI DEFENDANT APPELLANT (2015)

Supreme Court, Appellate Division, Fourth Department.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. EDMUND M. SERWINOWSKI, DEFENDANT–APPELLANT.

KA 13–00940

Decided: January 02, 2015

PRESENT: CENTRA, J.P., FAHEY, LINDLEY, SCONIERS, AND WHALEN, JJ.

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (MEGAN E. MORAN OF COUNSEL), FOR DEFENDANT–APPELLANT. FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: On appeal from a judgment convicting him upon his plea of guilty of manslaughter in the first degree (Penal Law § 125.20[1] ), 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 any issue concerning the severity of the sentence’ “ (People v. Lorenz, 119 AD3d 1450, 1450, lv denied 24 NY3d 962, quoting People v. Pimentel, 108 AD3d 861, 862, lv. denied 21 NY3d 1076). Nevertheless, we conclude that the sentence is not unduly harsh or severe.

Frances E. Cafarell

Clerk of the Court

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