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

465
KA 15-00852
PRESENT: WHALEN, P.J., LINDLEY, DEJOSEPH, NEMOYER, AND CURRAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CODY TESTERMAN, DEFENDANT-APPELLANT.


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

MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO (MICHAEL
J. HILLERY OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (M.
William Boller, A.J.), rendered April 17, 2014. The judgment
convicted defendant, upon his plea of guilty, of manslaughter in the
first 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 manslaughter in the first degree (Penal Law
§ 125.20 [1]). We agree with defendant that his waiver of the right
to appeal does not encompass his challenge to the severity of the
sentence. First, “ ‘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, lv denied 24 NY3d 962; see People v Maracle, 19
NY3d 925, 928). Second, “ ‘[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
Avellino, 119 AD3d 1449, 1449-1450; see generally People v Bradshaw,
18 NY3d 257, 264-266). We nevertheless conclude that the negotiated
sentence is not unduly harsh or severe. We note that defendant
stabbed the victim more than 20 times, including 18 times in his face,
throat, and stomach, thereby causing his death. Although charged with
murder in the second degree, defendant was allowed to plead guilty to
manslaughter in the first degree with the understanding that he would
                                    -2-                  465
                                                   KA 15-00852

receive the agreed-upon sentence.




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