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

1321
KA 11-00709
PRESENT: SCUDDER, P.J., SMITH, VALENTINO, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

DWIGHT FOWLER, DEFENDANT-APPELLANT.


DAVISON LAW OFFICE, PLLC, CANANDAIGUA (MARK C. DAVISON OF COUNSEL),
FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (STEPHEN X. O’BRIEN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Francis A. Affronti, J.), rendered March 9, 2010. The judgment
convicted defendant, upon his plea of guilty, of kidnapping in the
second degree, criminal sexual act in the first degree and robbery 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, inter alia, kidnapping in the second degree (Penal
Law § 135.20), defendant contends that the waiver of the right to
appeal is not valid and challenges the severity of the sentence. We
agree with defendant that his 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 the harshness of his
sentence” (People v Pimentel, 108 AD3d 861, 862, lv denied 21 NY3d
1076, citing People v Maracle, 19 NY3d 925, 928). Nevertheless, we
conclude that the sentence is not unduly harsh or severe.




Entered:    December 31, 2015                      Frances E. Cafarell
                                                   Clerk of the Court
