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

1111
KA 13-01341
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

DUSK A. TOCHA, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SUSAN C. MINISTERO OF
COUNSEL), FOR DEFENDANT-APPELLANT.

JAY D. CARR, SPECIAL PROSECUTOR, OLEAN, FOR RESPONDENT.


     Appeal from a judgment of the Cattaraugus County Court (Larry M.
Himelein, J.), rendered September 17, 2012. The judgment convicted
defendant, upon his plea of guilty, of course of sexual conduct
against a child 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 course of sexual conduct against a child in the
first degree (Penal Law § 130.75 [1] [b]), defendant contends that his
sentence is unduly harsh and severe. Although defendant’s waiver of
his right to appeal does not encompass his challenge to the severity
of the sentence “inasmuch as [County] Court did not explain during the
course of the allocution concerning the waiver of the right to appeal
that he was waiving the right to appeal any issue regarding the
severity of the sentence” (People v Donaldson, 130 AD3d 1486, 1486),
we nevertheless perceive no basis in the record to modify the
negotiated sentence as a matter of discretion in the interest of
justice (see CPL 470.15 [6] [b]).




Entered:    November 20, 2015                      Frances E. Cafarell
                                                   Clerk of the Court
