People v. Tomeno , 33 N.Y.S.3d 920 ( 2016 )

Appeal from a judgment of the Supreme Court, Monroe County (Thomas E. Moran, J.), rendered November 24, 2014. The judgment convicted defendant, upon his plea of guilty, of attempted robbery 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 attempted robbery in the first degree (Penal Law §§ 110.00, 160.15 [4]), for which he was sentenced to a determinate term of imprisonment of six years plus a period of postrelease supervision. 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 [2013], lv denied 21 NY3d 1076 [2013]; see People v Maracle, 19 NY3d 925, 928 ,[2012]). Moreover, although defendant signed a written waiver of the right to appeal, the written waiver failed to state that defendant was waiving his right to appeal his sentence. Nevertheless, based on our review of the record, and considering defendant’s criminal history, which includes prior felony convictions, we decline to exercise our power to modify the sentence as a matter of discretion in the interest of justice (see CPL 470.15 [6] [b]).

Present — Centra, J.P., Lindley, DeJoseph, NeMoyer and Troutman, JJ.