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

614
KA 14-01954
PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, DEJOSEPH, AND NEMOYER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

DEVON FRANKLIN, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (STEPHEN X. O’BRIEN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Vincent M.
Dinolfo, J.), rendered September 26, 2013. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of a weapon
in the second 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 criminal possession of a weapon in the second degree
(Penal Law § 265.03 [3]), defendant challenges the severity of the
sentence. We conclude that the waiver of the right to appeal does not
encompass defendant’s challenge to the severity of the sentence
“inasmuch as there is no indication in the record of the plea
allocution that defendant was waiving his right to appeal the severity
of the sentence[]” (People v Doblinger, 117 AD3d 1484, 1485). We
nevertheless conclude that the sentence is not unduly harsh or severe.




Entered:    July 1, 2016                           Frances E. Cafarell
                                                   Clerk of the Court
