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

926
KA 12-01658
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                                MEMORANDUM AND ORDER

MARCO D. COLES, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (KIMBERLY F. DUGUAY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Vincent M.
Dinolfo, J.), rendered July 12, 2012. The judgment convicted
defendant, upon his plea of guilty, of robbery in the second 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 robbery in the second degree (Penal Law §
160.10 [2] [b]). We agree with defendant that his waiver of the right
to appeal does not encompass his challenge to the severity of the
sentence. “Although defendant executed a written waiver of the right
to appeal, there was no colloquy between [County] 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” (People v Mack, 124 AD3d 1362, 1363). We
nevertheless conclude that the sentence is not unduly harsh or severe.




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