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

846
KA 13-02165
PRESENT: SCUDDER, P.J., CARNI, LINDLEY, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

STEVEN TYLER, 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 (ASHLEY R. LOWRY OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Michael L.
D’Amico, J.), rendered August 18, 2011. 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]). 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” with respect to his conviction that he
was also waiving his right to appeal any issue concerning 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:    July 2, 2015                           Frances E. Cafarell
                                                   Clerk of the Court
