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

689
KA 14-00568
PRESENT: SCUDDER, P.J., CARNI, SCONIERS, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

DANIELLE L. LEIGHTON, 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 May 9, 2013. The judgment convicted defendant,
upon her plea of guilty, of failure to exercise due care, reckless
driving, driving while ability impaired by drugs, driving while
ability impaired by the combined influence of drugs or of alcohol and
any drug or drugs, vehicular assault in the second degree and assault
in the second degree.

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

     Memorandum: Defendant appeals from a judgment convicting her
upon her plea of guilty of, inter alia, assault in the second degree
(Penal Law § 120.05 [4]). We agree with defendant that the waiver of
the right to appeal does not encompass her 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 her conviction that she was also waiving her
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:   June 12, 2015                           Frances E. Cafarell
                                                   Clerk of the Court
