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

52
KA 14-01277
PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, CARNI, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

DANIELLE KELLOGG, DEFENDANT-APPELLANT.


JOHN K. JORDAN, BUFFALO, FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DONNA A. MILLING OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Michael L.
D’Amico, J.), rendered May 22, 2013. The judgment convicted
defendant, upon her plea of guilty, of vehicular 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 her upon her
plea of guilty of vehicular manslaughter in the first degree (Penal
Law § 125.13 [3]), defendant contends that the waiver of the right to
appeal is not valid and challenges the severity of the sentence.
Although the record establishes that defendant knowingly, voluntarily
and intelligently waived the right to appeal (see generally People v
Lopez, 6 NY3d 248, 256), we conclude that the valid waiver of the
right to appeal does not encompass the 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 [her] conviction that [she] was also waiving [her] right to
appeal the harshness of [her] sentence” (People v Pimentel, 108 AD3d
861, 862, lv denied 21 NY3d 1076; see People v Peterson, 111 AD3d
1412, 1412). Nevertheless, on the merits, we conclude that the
sentence is not unduly harsh or severe.




Entered:    February 6, 2015                       Frances E. Cafarell
                                                   Clerk of the Court
