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

1092
KA 15-00490
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, NEMOYER, AND TROUTMAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

BERNARD GRUCZA, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (TIMOTHY P. MURPHY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

BERNARD GRUCZA, DEFENDANT-APPELLANT PRO SE.

MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO (DAVID A.
HERATY OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Penny
M. Wolfgang, J.), rendered July 24, 2014. The judgment convicted
defendant, upon his plea of guilty, of manslaughter in the first
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 manslaughter in the first degree (Penal Law
§ 125.20 [1]). We agree with defendant’s contention in his main and
pro se supplemental briefs that his waiver of the right to appeal does
not encompass his challenge to the severity of the sentence. “[N]o
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 the harshness of his
sentence” (People v Pimental, 108 AD3d 861, 862, lv denied 21 NY3d
1076, citing People v Maracle, 19 NY3d 925, 928; see People v Gibson,
134 AD3d 1517, 1518, lv denied 27 NY3d 1069). Although defendant
executed a written waiver of the right to appeal in which he waived
“all aspects of [the] case, including the sentence,” we conclude that
the written waiver “does not foreclose our review of the severity of
the sentence because ‘[Supreme Court] did not inquire of defendant
whether he understood the written waiver or whether he had even read
the waiver before signing it’ ” (People v Donaldson, 130 AD3d 1486,
1486-1487, quoting People v Bradshaw, 18 NY3d 257, 262). We
nevertheless reject defendant’s contention in his main and pro se
supplemental briefs that the bargained-for sentence is unduly harsh
                               -2-                 1092
                                              KA 15-00490

and severe.




Entered:   December 23, 2016         Frances E. Cafarell
                                     Clerk of the Court
