People v Martin

People v Martin 2015 NY Slip Op 00156 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., CENTRA, CARNI, AND SCONIERS, JJ.
1428 KA 12-02265

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

v

WILLIE MARTIN, DEFENDANT-APPELLANT.

Appeal from a judgment of the Supreme Court, Erie County (Christopher J. Burns, J.), rendered October 22, 2012. The judgment convicted defendant, upon his plea of guilty, of attempted robbery in the second degree.

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (CLAIRE H. FORTIN 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: On appeal from a judgment convicting him upon his plea of guilty of attempted robbery in the second degree (Penal Law §§ 110.00, 160.10 [2] [b]), defendant contends that the waiver of the right to appeal is invalid and challenges the severity of the sentence. Although defendant knowingly, voluntarily and intelligently waived the right to appeal (see generally People v Lopez, 6 NY3d 248, 256), we nevertheless agree with defendant that the waiver does not preclude his challenge to the severity of the sentence. "While 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; see People v Peterson, 111 AD3d 1412, 1412). On the merits, we conclude that the sentence is not unduly harsh or severe.

Entered: January 2, 2015

Frances E. Cafarell

Clerk of the Court