People v. Avellino

Appeal from a judgment of the Supreme Court, Erie County (M. William Boiler, A.J.), rendered July 9, 2012. The judgment convicted defendant, upon his plea of guilty, of burglary in the third degree and criminal possession of stolen property in the fourth degree.

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) and criminal possession of stolen property in the fourth degree (§ 165.45 [1]). We agree with defendant that his waiver of the right to appeal does not encompass his challenge to the severity of the sentence. Although “it is evident that defendant waived [his] right to appeal [his] conviction, there is no indication in the record that defendant waived the right to appeal the harshness of [his] sentence” (People v Maracle, 19 NY3d 925 , 928 [2012]; see People v Pimentel, 108 AD3d 861 , 862 [2013], lv denied 21 NY3d 1076 [2013]). Furthermore, “[although the record establishes that defendant executed a written waiver of the right to appeal, there was no colloquy between [Supreme]

Present — Scudder, EJ., Smith, Peradotto, Sconiers and Whalen, JJ.