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

209
KA 13-00153
PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

ROBERT M. FELVUS, DEFENDANT-APPELLANT.


DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (JOSEPH G. FRAZIER OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (LAURA T. BITTNER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Niagara County Court (Sara S.
Farkas, J.), rendered October 11, 2012. The judgment convicted
defendant, upon his plea of guilty, of attempted rape in the first
degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of attempted rape in the first degree (Penal Law §§
110.00, 110.05 [4]; 130.35 [3]), defendant contends that the waiver of
the right to appeal is not valid, and he challenges the severity of
the sentence. Although the record establishes that defendant
knowingly, voluntarily and intelligently waived the right to appeal
(see generally People v Lopez, 6 NY3d 248, 256), we agree with
defendant that the valid waiver of the right to appeal does not
encompass his challenge to the severity of the sentence because the
record of the plea allocution concerning the waiver of defendant’s
right to appeal refers only to the conviction and does not establish
that defendant was also waiving his right to appeal the severity of
the sentence (see People v Maracle, 19 NY3d 925, 928). Nevertheless,
we conclude that the sentence is not unduly harsh or severe.




Entered:   March 21, 2014                          Frances E. Cafarell
                                                   Clerk of the Court
