People v Demarco

People v Demarco 2014 NY Slip Op 01047 Released on February 14, 2014 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 February 14, 2014
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.
88 KA 13-00198

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

v

Thomas J. Demarco, DEFENDANT-APPELLANT.


Appeal from a judgment of the Cattaraugus County Court (William H. Mountain, III, A.J.), rendered November 26, 2012. The judgment convicted defendant, upon his plea of guilty, of aggravated driving while intoxicated, a class E felony, and aggravated unlicensed operation of a motor vehicle in the second degree.


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.


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

Memorandum: Defendant appeals from a judgment convicting himupon 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.
Entered: February 14, 2014
Frances E. Cafarell
Clerk of the Court