| People v Herrington |
| 2018 NY Slip Op 03276 |
| Decided on May 4, 2018 |
| Appellate Division, Fourth Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on May 4, 2018 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: SMITH, J.P., CARNI, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ.
526 KA 16-01317
v
SHAWN HERRINGTON, DEFENDANT-APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (TIMOTHY P. MURPHY OF COUNSEL), FOR DEFENDANT-APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. LOWRY OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Supreme Court, Erie County (Penny M. Wolfgang, J.), rendered July 19, 2016. The judgment convicted defendant, upon his plea of guilty, of attempted assault 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 attempted assault in the second degree (Penal Law §§ 110.00, 120.05 [2]). As the People correctly concede, defendant's 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 harshness of his sentence" (People v Tomeno, 141 AD3d 1120, 1120-1121 [4th Dept 2016], lv denied 28 NY3d 974 [2016] [internal quotation marks omitted]; see People v Maracle, 19 NY3d 925, 928 [2012]). We nevertheless conclude that the sentence is not unduly harsh or severe. Indeed, we note that Supreme Court imposed the minimum permissible sentence.
Entered: May 4, 2018
Mark W. Bennett
Clerk of the Court