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

848
KA 13-01277
PRESENT: SCUDDER, P.J., CARNI, LINDLEY, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DEVAUHN DONALDSON, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KAREN C.
RUSSO-MCLAUGHLIN 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 (M.
William Boller, A.J.), rendered May 24, 2013. The judgment convicted
defendant, upon his plea of guilty, of attempted robbery 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 robbery in the second degree
(Penal Law §§ 110.00, 160.10 [2] [b]). We agree with defendant that
his waiver of the right to appeal does not encompass his challenge to
the severity of the sentence inasmuch as Supreme 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 (see People v Maracle, 19 NY3d 925, 928;
People v Peterson, 111 AD3d 1412, 1412). Furthermore, although the
written waiver of the right to appeal specifically encompassed any
challenge to the sentence, the written waiver does not foreclose our
review of the severity of the sentence because “[t]he court did not
inquire of defendant whether he understood the written waiver or
whether he had even read the waiver before signing it” (People v
Bradshaw, 18 NY3d 257, 262; see People v Elmer, 19 NY3d 501, 510). We
nevertheless conclude that the enhanced sentence is not unduly harsh
or severe. Although the court advised defendant at the time of the
plea that it would sentence him to a split sentence of local
incarceration and probation, that commitment was predicated on
defendant’s compliance with the conditions that, inter alia, he
cooperate with and be truthful during his presentence interview with
the Probation Department and that he appear at all court appearances,
                                 -2-                           848
                                                         KA 13-01277

and defendant failed to comply with those conditions.




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