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

645
KA 15-00278
PRESENT: CENTRA, J.P., LINDLEY, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

CHRISTOPHER T. TOMENO, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF
COUNSEL), FOR DEFENDANT-APPELLANT.

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


     Appeal from a judgment of the Supreme Court, Monroe County
(Thomas E. Moran, J.), rendered November 24, 2014. The judgment
convicted defendant, upon his plea of guilty, of attempted robbery in
the first 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 attempted robbery in the first degree
(Penal Law §§ 110.00, 160.15 [4]), for which he was sentenced to a
determinate term of imprisonment of six years plus a period of
postrelease supervision. 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 the
harshness of his sentence” (People v Pimentel, 108 AD3d 861, 862, lv
denied 21 NY3d 706; see People v Maracle, 19 NY3d 925, 928).
Moreover, although defendant signed a written waiver of the right to
appeal, the written waiver failed to state that defendant was waiving
his right to appeal his sentence. Nevertheless, based on our review
of the record, and considering defendant’s criminal history, which
includes prior felony convictions, we decline to exercise our power to
modify the sentence as a matter of discretion in the interest of
justice (see CPL 470.15 [6] [b]).




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