*1 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department 689

KA 14-00568

PRESENT: SCUDDER, P.J., CARNI, SCONIERS, VALENTINO, AND WHALEN, JJ. THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

V MEMORANDUM AND ORDER DANIELLE L. LEIGHTON, DEFENDANT-APPELLANT.

DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (JOSEPH G. FRAZIER OF COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (LAURA T. BITTNER OF COUNSEL), FOR RESPONDENT. Appeal from a judgment of the Niagara County Court (Sara S.

Farkas, J.), rendered May 9, 2013. The judgment convicted defendant, upon her plea of guilty, of failure to exercise due care, reckless driving, driving while ability impaired by drugs, driving while ability impaired by the combined influence of drugs or of alcohol and any drug or drugs, vehicular assault in the second degree and 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 her upon her plea of guilty of, inter alia, assault in the second degree (Penal Law § 120.05 [4]). We agree with defendant that the waiver of the right to appeal does not encompass her 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” with respect to her conviction that she was also waiving her 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: June 12, 2015 Frances E. Cafarell

Clerk of the Court