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

765
KA 14-00049
PRESENT: SCUDDER, P.J., SMITH, SCONIERS, VALENTINO, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

ROBERT W. TETRAULT, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (NICHOLAS P. DIFONZO OF
COUNSEL), FOR DEFENDANT-APPELLANT.

JOSEPH V. CARDONE, DISTRICT ATTORNEY, ALBION (KATHERINE BOGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Orleans County Court (James P.
Punch, J.), rendered October 21, 2013. The judgment convicted
defendant, upon his plea of guilty, of attempted assault in the second
degree and attempted criminal possession of a weapon in the third
degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of attempted assault in the second degree (Penal Law §§
110.00, 120.05 [2]) and attempted criminal possession of a weapon in
the third degree (§§ 110.00, 265.02 [1]), defendant contends that his
waiver of the right to appeal is not valid and challenges the severity
of the sentence. We agree with defendant that his waiver of the right
to appeal is invalid because, during the course of the allocution
concerning the waiver of defendant’s right to appeal his conviction,
County Court did not mention “that he was also waiving his right to
appeal any issue concerning the severity of the sentence” (People v
Peterson, 111 AD3d 1412, 1412; see People v Pimentel, 108 AD3d 861,
862, lv denied 21 NY3d 706). Nevertheless, we conclude that the
sentence is not unduly harsh or severe.




Entered:    June 12, 2015                          Frances E. Cafarell
                                                   Clerk of the Court
