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

88
KA 13-00198
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

THOMAS J. DEMARCO, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (NICHOLAS P. DIFONZO OF
COUNSEL), FOR DEFENDANT-APPELLANT.

LORI PETTIT RIEMAN, DISTRICT ATTORNEY, LITTLE VALLEY (KELLY M. BALCOM
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Cattaraugus County Court (William
H. Mountain, III, A.J.), rendered November 26, 2012. The judgment
convicted defendant, upon his plea of guilty, of aggravated driving
while intoxicated, a class E felony, and aggravated unlicensed
operation of a motor vehicle 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, inter alia, aggravated driving while
intoxicated (Vehicle and Traffic Law §§ 1192 [2-a] [a]; 1193 [1] [c]
[i]). 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” that he was also waiving his right to appeal any issue
concerning the severity of the sentence (People v Pimentel, 108 AD3d
861, 862, lv denied 21 NY3d 1076; see People v Maracle, 19 NY3d 925,
928). We nevertheless conclude that the sentence is not unduly harsh
or severe.




Entered:   February 14, 2014                       Frances E. Cafarell
                                                   Clerk of the Court
