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

1352
KA 12-01886
PRESENT: SMITH, J.P., PERADOTTO, CARNI, VALENTINO, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

TAMELL MACK, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ERIC T. GLYNN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID PANEPINTO OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (M.
William Boller, A.J.), rendered June 22, 2012. The judgment convicted
defendant, upon his plea of guilty, of burglary in the third 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 burglary in the third degree (Penal Law §
140.20). We agree with defendant that his waiver of the right to
appeal does not encompass his challenge to the severity of the
sentence (see People v Maracle, 19 NY3d 925, 928). Although defendant
executed a written waiver of the right to appeal, there was no
colloquy between Supreme Court and defendant regarding the written
waiver to ensure that defendant read and understood it and that he was
waiving his right to challenge the length of the sentence (see
generally People v Carno, 101 AD3d 1663, 1663-1664, lv denied 20 NY3d
1060). We nevertheless conclude that the sentence is not unduly harsh
or severe.




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