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

798
KA 12-01110
PRESENT: SMITH, J.P., CENTRA, CARNI, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

WILLIAM MCCLURE, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KRISTIN M. PREVE OF
COUNSEL), FOR DEFENDANT-APPELLANT.

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


     Appeal from a judgment of the Supreme Court, Erie County (Penny
M. Wolfgang, J.), rendered July 20, 2011. The judgment convicted
defendant, upon his plea of guilty, of attempted burglary in the
second 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 burglary in the second degree
(Penal Law §§ 110.00, 140.25 [2]). We agree with defendant that the
waiver of the right to appeal does not encompass his challenge to the
severity of the sentence imposed “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; see People v Maracle, 19 NY3d 925, 928). We
nevertheless conclude that the sentence is not unduly harsh or severe.




Entered:    July 11, 2014                          Frances E. Cafarell
                                                   Clerk of the Court
