People v. Simons

Appeal from a judgment of the Niagara County Court (Matthew J. Murphy, III, J.), rendered October 26, 2015. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a controlled substance in the fourth 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 criminal possession of a controlled substance in the fourth degree (Penal Law § 220.09 [1]). Initially, we agree with defendant that his waiver of the right to appeal does not encompass his challenge to the severity of the sentence and thus does not foreclose our review of that challenge (see People v Maracle, 19 NY3d 925, 927-928 [2012]; People v Tomeno, 141 AD3d 1120, 1120-1121 [2016], lv denied 28 NY3d 974 [2016]). Nevertheless, we conclude that the sentence is not unduly harsh or severe.