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

1428
KA 12-02265
PRESENT: SCUDDER, P.J., CENTRA, CARNI, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

WILLIE MARTIN, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (CLAIRE H. FORTIN 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
(Christopher J. Burns, J.), rendered October 22, 2012. The judgment
convicted defendant, upon his plea of guilty, of attempted robbery in
the second 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 robbery in the second degree (Penal Law §§
110.00, 160.10 [2] [b]), defendant contends that the waiver of the
right to appeal is invalid and challenges the severity of the
sentence. Although defendant knowingly, voluntarily and intelligently
waived the right to appeal (see generally People v Lopez, 6 NY3d 248,
256), we nevertheless agree with defendant that the waiver does not
preclude his challenge to the severity of the sentence. “While 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 Peterson, 111 AD3d 1412, 1412). On the merits,
we conclude that the sentence is not unduly harsh or severe.




Entered:   January 2, 2015                         Frances E. Cafarell
                                                   Clerk of the Court
