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

318
KA 12-00720
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

THEODORE MCMILLAN, DEFENDANT-APPELLANT.


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

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (MARIA MALDONADO
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (William D.
Walsh, J.), rendered October 4, 2011. The judgment convicted
defendant, upon his plea of guilty, of burglary in the first degree,
criminal possession of a weapon in the second degree and menacing 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 burglary in the first degree (Penal Law § 140.30
[4]), criminal possession of a weapon in the second degree (§ 265.03
[3]), and menacing in the second degree (§ 120.14 [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 did not voluntarily waive his right to
appeal, as defendant contends, and that his challenge to the severity
of the sentence is therefore properly before us (cf. People v
Figueroa, 17 AD3d 1130, 1130, lv denied 5 NY3d 788), we perceive no
basis to modify the sentence as a matter of discretion in the interest
of justice (see CPL 470.15 [6] [b]). We note that, during his
commission of the burglary, defendant pointed a loaded handgun at an
infant and fired the weapon several times at another person. One of
the bullets grazed that person’s scalp. We also note that defendant,
who was 20 years old when he committed the crimes, has a prior felony
conviction and has violated two terms of probation. Consistent with
its sentence promise, County Court sentenced defendant on the felony
counts to an aggregate determinate term of imprisonment of 13 years,
which is far less than the maximum of 25 years, and less than the 17
years requested by the People. Under the circumstances, it cannot be
                                 -2-                           318
                                                         KA 12-00720

said that the sentence is unduly harsh or severe.




Entered:   March 27, 2015                       Frances E. Cafarell
                                                Clerk of the Court
