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

402
KA 12-02201
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

JACOB E. WARE, III, 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 July 12, 2012. The judgment convicted
defendant, upon his plea of guilty, of burglary in the second 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 burglary in the second degree (Penal Law §
140.25 [2]). 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 conclude that the
valid waiver of the right to appeal 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” with respect to his conviction that he
was also waiving his 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). Nevertheless, on
the merits, we conclude that the sentence is not unduly harsh or
severe.




Entered:   May 9, 2014                             Frances E. Cafarell
                                                   Clerk of the Court
