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

1377
KA 13-00460
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

HORACE HARPER, JR., DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KARIM A. ABDULLA OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. SMALL OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (M.
William Boller, A.J.), rendered June 7, 2012. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of a
controlled substance in the third degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of criminal possession of a controlled
substance in the third degree (Penal Law § 220.16 [12]). We agree
with defendant that the 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 (see People v Peterson, 111 AD3d 1412, 1412;
People v Pimentel, 108 AD3d 861, 862, lv denied 21 NY3d 1076). We
nevertheless conclude that the sentence is not unduly harsh or severe.




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