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

557
KA 14-00925
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

JOSHUA J. FRENCH, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (DEBORAH K. JESSEY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Michael L.
D’Amico, J.), rendered April 3, 2014. The judgment convicted
defendant, upon his plea of guilty, of two counts of driving while
intoxicated, class D felonies and two counts of aggravated unlicensed
operation of a motor vehicle in the first degree, class E felonies.

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

      Memorandum: On appeal from a judgment convicting him, upon his
guilty plea, of two counts each of felony driving while intoxicated
(Vehicle and Traffic Law §§ 1192 [3]; 1193 [1] [c] [ii]) and
aggravated unlicensed operation of a motor vehicle in the first degree
(§ 511 [3]), defendant contends that his waiver of the right to appeal
is unenforceable and that his sentence is unduly harsh and severe. 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 his conviction
that he was also waiving his right to appeal any issue concerning the
severity of the sentence” (People v Lorenz, 119 AD3d 1450, 1450
[internal quotation marks omitted], lv denied 24 NY3d 962; see People
v Pimentel, 108 AD3d 861, 862, lv denied 21 NY3d 1076). Nevertheless,
considering that defendant pleaded guilty to, inter alia, two separate
felony charges of driving while intoxicated and received only a local
jail sentence, we perceive no basis to exercise our discretion to
modify his sentence in the interest of justice (see CPL 470.15 [6]
[b]).


Entered:    May 8, 2015                            Frances E. Cafarell
                                                   Clerk of the Court
