*1 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department 456

KA 11-02322

PRESENT: SMITH, J.P., CARNI, LINDLEY, SCONIERS, AND DEJOSEPH, JJ. THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

V MEMORANDUM AND ORDER ERIC F. MCCLOUGH, DEFENDANT-APPELLANT.

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANE I. YOON OF COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF COUNSEL), FOR RESPONDENT. Appeal from a judgment of the Supreme Court, Monroe County (Francis A. Affronti, J.), rendered September 20, 2011. The judgment convicted defendant, upon his plea of guilty, of robbery 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 robbery in the second degree (Penal Law § 160.10 [2] [a]). 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 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: May 8, 2015 Frances E. Cafarell

Clerk of the Court