People v Harper

People v Harper 2015 NY Slip Op 00129 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: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND SCONIERS, JJ.
1377 KA 13-00460

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

v

HORACE HARPER, JR., DEFENDANT-APPELLANT.

Appeal from a judgment of the Supreme Court, Erie County (M. William Boller, A.J.), rendered June 7, 2012. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a controlled substance in the third degree.

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KARIM A. ABDULLA OF COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. SMALL 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 criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [12]). 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 his conviction that he was also waiving his right to appeal any issue concerning the severity of the sentence (see People v Peterson, 111 AD3d 1412, 1412; People v Pimentel, 108 AD3d 861, 862, lv denied 21 NY3d 1076). We nevertheless conclude that the sentence is not unduly harsh or severe.

Entered: January 2, 2015

Frances E. Cafarell

Clerk of the Court