           SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

1456
KA 13-00940
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

EDMUND M. SERWINOWSKI, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (MEGAN E. MORAN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (M.
William Boller, A.J.), rendered May 9, 2013. The judgment convicted
defendant, upon his plea of guilty, of manslaughter in the first
degree.

     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 manslaughter in the first degree (Penal Law § 125.20
[1]), defendant contends that the waiver of the right to appeal is not
valid and challenges the severity of the sentence. We agree with
defendant that his 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’ ” (People v Lorenz, 119 AD3d 1450, 1450, lv denied 24 NY3d
962, quoting People v Pimentel, 108 AD3d 861, 862, lv denied 21 NY3d
1076). Nevertheless, we conclude that the sentence is not unduly
harsh or severe.




Entered:   January 2, 2015                         Frances E. Cafarell
                                                   Clerk of the Court
