People v Peterson

People v Peterson 2013 NY Slip Op 07618 Released on November 15, 2013 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Released on November 15, 2013
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: SMITH, J.P., CENTRA, FAHEY, CARNI, AND WHALEN, JJ.
1174 KA 12-01253

[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

v

LARRY M. PETERSON, DEFENDANT-APPELLANT.


Appeal from a judgment of the Cattaraugus County Court (M. William Boller, A.J.), rendered May 14, 2012. The judgment convicted defendant, upon his plea of guilty, of attempted criminal sale of a controlled substance in the third degree.


CARR SAGLIMBEN LLP, OLEAN (JAY D. CARR OF COUNSEL), FOR DEFENDANT-APPELLANT.
LORI PETTIT RIEMAN, DISTRICT ATTORNEY, LITTLE VALLEY (JOHN C. LUZIER OF COUNSEL), FOR RESPONDENT.


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 attempted criminal sale of a controlled substance in the third degree (Penal Law §§ 110.00, 220.39 [1]). 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 concerning the waiver of defendant's right to appeal" with respect to his conviction that he was also waiving his right to appeal any issue concerning the severity of the sentence (People v Pimentel, 108 AD3d 861, 862; see People v Maracle, 19 NY3d 925, 928). We nevertheless conclude that the sentence is not unduly harsh or severe.
Entered: November 15, 2013
Frances E. Cafarell
Clerk of the Court