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

805
KA 12-01948
PRESENT: SCUDDER, P.J., SMITH, PERADOTTO, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

ANDREW AVELLINO, 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 (M.
William Boller, A.J.), rendered July 9, 2012. The judgment convicted
defendant, upon his plea of guilty, of burglary in the third degree
and criminal possession of stolen property in the fourth 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) and criminal possession of stolen property in the fourth
degree (§ 165.45 [1]). We agree with defendant that his waiver of the
right to appeal does not encompass his challenge to the severity of
the sentence. Although “it is evident that defendant waived [his]
right to appeal [his] conviction, there is no indication in the record
that defendant waived the right to appeal the harshness of [his]
sentence” (People v Maracle, 19 NY3d 925, 928; see People v Pimentel,
108 AD3d 861, 862, lv denied 21 NY3d 1076). Furthermore, “[a]lthough
the record establishes that defendant executed a written waiver of the
right to appeal, there was no colloquy between [Supreme] Court and
defendant regarding the waiver of the right to appeal to ensure that”
defendant was aware that it encompassed his challenge to the severity
of the sentence (People v Carno, 101 AD3d 1663, 1664, lv denied 20
NY3d 1060; see generally People v Bradshaw, 18 NY3d 257, 264-266). We
nevertheless conclude that the sentence is not unduly harsh or severe.




Entered:    July 11, 2014                          Frances E. Cafarell
                                                   Clerk of the Court
