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

456
KA 11-02322
PRESENT: SMITH, J.P., CARNI, LINDLEY, SCONIERS, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

ERIC F. MCCLOUGH, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANE I. YOON OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Francis A. Affronti, J.), rendered September 20, 2011. The judgment
convicted defendant, upon his plea of guilty, of 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 robbery in the second degree (Penal Law §
160.10 [2] [a]). 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 the
severity of the sentence (People v Pimentel, 108 AD3d 861, 862, lv
denied 21 NY3d 1076; see People v Maracle, 19 NY3d 925, 928). We
nevertheless conclude that the sentence is not unduly harsh or severe.




Entered:   May 8, 2015                             Frances E. Cafarell
                                                   Clerk of the Court
