People v Mack

People v Mack 2015 NY Slip Op 00118 Decided on January 2, 2015 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.

Decided on January 2, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: SMITH, J.P., PERADOTTO, CARNI, VALENTINO, AND DEJOSEPH, JJ.
1352 KA 12-01886

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

v

TAMELL MACK, DEFENDANT-APPELLANT.

Appeal from a judgment of the Supreme Court, Erie County (M. William Boller, A.J.), rendered June 22, 2012. The judgment convicted defendant, upon his plea of guilty, of burglary in the third degree.

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ERIC T. GLYNN OF COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID PANEPINTO 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 burglary in the third degree (Penal Law § 140.20). We agree with defendant that his waiver of the right to appeal does not encompass his challenge to the severity of the sentence (see People v Maracle, 19 NY3d 925, 928). Although defendant executed a written waiver of the right to appeal, there was no colloquy between Supreme Court and defendant regarding the written waiver to ensure that defendant read and understood it and that he was waiving his right to challenge the length of the sentence (see generally People v Carno, 101 AD3d 1663, 1663-1664, lv denied 20 NY3d 1060). We nevertheless conclude that the sentence is not unduly harsh or severe.

Entered: January 2, 2015

Frances E. Cafarell

Clerk of the Court