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

491
KA 16-00069
PRESENT: SMITH, J.P., CARNI, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

PHILIP B. MCARTHUR, DEFENDANT-APPELLANT.


DAVISON LAW OFFICE PLLC, CANANDAIGUA (MARY P. DAVISON OF COUNSEL), FOR
DEFENDANT-APPELLANT.

BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL),
FOR RESPONDENT.


     Appeal from a judgment of the Steuben County Court (Joseph W.
Latham, J.), rendered March 18, 2015. The judgment convicted
defendant, upon his plea of guilty, of criminal mischief 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 criminal mischief in the third degree
(Penal Law § 145.05 [2]). Defendant’s challenge to the severity of
his sentence is encompassed by his valid waiver of the right to
appeal. Although no mention was made on the record during the plea
colloquy that defendant was waiving his right to appeal any issue
concerning the severity of the sentence (see People v Peterson, 111
AD3d 1412, 1412), here the oral waiver was accompanied by a written
plea agreement that provided that defendant was waiving his right to
appeal his “conviction, sentence, and any proceedings that may result
from this prosecution.” Moreover, County Court conducted an extensive
inquiry that established that defendant had reviewed and understood
the written plea agreement, including its waiver-of-appeal provision,
had discussed it with his lawyer, and had agreed to its terms, and
defendant signed the document in open court during the course of the
plea colloquy (see People v Bryant, 28 NY3d 1094, 1096; People v
Ramos, 7 NY3d 737, 738; cf. People v Bradshaw, 18 NY3d 257, 264-267).
Therefore, defendant may not challenge the severity of the sentence.




Entered:    April 28, 2017                         Frances E. Cafarell
                                                   Clerk of the Court
