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

445
KA 12-01875
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, LINDLEY, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

SHYTRECE BANKS, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (BARBARA J. DAVIES OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. SMALL OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County
(Christopher J. Burns, J.), rendered September 4, 2012. The judgment
convicted defendant, upon her plea of guilty, of grand larceny in the
third degree and criminal possession of a controlled substance in the
third degree.

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

     Memorandum: Defendant appeals from a judgment convicting her
upon her plea of guilty of grand larceny in the third degree (Penal
Law § 155.35) and criminal possession of a controlled substance in the
third degree (§ 220.16 [12]). We agree with defendant that the waiver
of the right to appeal does not encompass her challenge to the
severity of the sentence inasmuch as “ ‘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 [her] conviction that
[she] was also waiving [her] right to appeal any issue concerning the
severity of the sentence” (People v Peterson, 111 AD3d 1412, 1412; see
People v Maracle, 19 NY3d 925, 928). We nevertheless conclude that
the sentence is not unduly harsh or severe.




Entered:   May 2, 2014                             Frances E. Cafarell
                                                   Clerk of the Court
