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

1174
KA 12-01253
PRESENT: SMITH, J.P., CENTRA, FAHEY, CARNI, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

LARRY M. PETERSON, DEFENDANT-APPELLANT.


CARR SAGLIMBEN LLP, OLEAN (JAY D. CARR OF COUNSEL), FOR
DEFENDANT-APPELLANT.

LORI PETTIT RIEMAN, DISTRICT ATTORNEY, LITTLE VALLEY (JOHN C. LUZIER
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Cattaraugus County Court (M.
William Boller, A.J.), rendered May 14, 2012. The judgment convicted
defendant, upon his plea of guilty, of attempted criminal sale of a
controlled substance in the third 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 attempted criminal sale of a controlled
substance in the third degree (Penal Law §§ 110.00, 220.39 [1]). 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” with respect to
his conviction that he was also waiving his right to appeal any issue
concerning the severity of the sentence (People v Pimentel, 108 AD3d
861, 862; see People v Maracle, 19 NY3d 925, 928). We nevertheless
conclude that the sentence is not unduly harsh or severe.




Entered:   November 15, 2013                       Frances E. Cafarell
                                                   Clerk of the Court
