THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. THOMAS DEMARCO DEFENDANT APPELLANT

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Supreme Court, Appellate Division, Fourth Department, New York.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. THOMAS J. DEMARCO, DEFENDANT–APPELLANT.

KA 13–00198

Decided: February 14, 2014

PRESENT:  SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ. THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (NICHOLAS P. DIFONZO OF COUNSEL), FOR DEFENDANT–APPELLANT. LORI PETTIT RIEMAN, DISTRICT ATTORNEY, LITTLE VALLEY (KELLY M. BALCOM 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, inter alia, aggravated driving while intoxicated (Vehicle and Traffic Law §§ 1192[2–a][a];  1193[1][c][i] ).   We agree with defendant that the 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” that he was also waiving his 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