THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. DANIELLE LEIGHTON DEFENDANT APPELLANT (2015)

Supreme Court, Appellate Division, Fourth Department.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. DANIELLE L. LEIGHTON, DEFENDANT–APPELLANT.

KA 14–00568

Decided: June 12, 2015

PRESENT: SCUDDER, P.J., CARNI, SCONIERS, VALENTINO, AND WHALEN, JJ.

DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (JOSEPH G. FRAZIER OF COUNSEL), FOR DEFENDANT–APPELLANT. MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (LAURA T. BITTNER 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 her upon her plea of guilty of, inter alia, assault in the second degree (Penal Law § 120.05 [4] ). We agree with defendant that the waiver of the right to appeal does not encompass her 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” with respect to her conviction that she was also waiving her right to appeal any issue concerning the severity of the sentence (People v. Pimentel, 108 AD3d 861, 862, lv denied 21 NY3d 1076; see People v. Maracle, 19 NY3d 925, 928). We nevertheless conclude that the sentence is not unduly harsh or severe.

Frances E. Cafarell

Clerk of the Court

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