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

806
KA 11-01821
PRESENT: SCUDDER, P.J., SMITH, PERADOTTO, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

MARK A. LORENZ, DEFENDANT-APPELLANT.


ERICKSON WEBB SCOLTON & HAJDU, LAKEWOOD (LYLE T. HAJDU OF COUNSEL),
FOR DEFENDANT-APPELLANT.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (JODI A. DANZIG OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Michael F.
Pietruszka, J.), rendered September 22, 2010. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of a
controlled substance in the fifth 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 criminal possession of a controlled
substance in the fifth degree (Penal Law § 220.06 [1]). We agree with
defendant that the 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 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). We nevertheless
conclude that the sentence is not unduly harsh or severe.




Entered:    July 11, 2014                          Frances E. Cafarell
                                                   Clerk of the Court
