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

75
KA 11-02495
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, SCONIERS, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

MICHAEL KEARNS, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (KRISTEN MCDERMOTT OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (Jeffrey R.
Merrill, A.J.), rendered July 26, 2011. The judgment convicted
defendant, upon his plea of guilty, of aggravated criminal contempt.

     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 aggravated criminal contempt (Penal Law § 215.52
[1]), defendant contends that his waiver of the right to appeal is
unenforceable and that his sentence is unduly harsh and severe. Even
assuming, arguendo, that defendant’s waiver of the right to appeal was
knowing, intelligent and voluntary, we agree with defendant that the
waiver 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 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 Pimentel, 108
AD3d 861, 862, lv denied 21 NY3d 1076). Nevertheless, we perceive no
basis to exercise our discretion to modify his sentence in the
interest of justice (see CPL 470.15 [6] [b]).




Entered:   February 13, 2015                       Frances E. Cafarell
                                                   Clerk of the Court
