People v Kazmierczak, 2024 NY Slip Op 03290 [228 AD3d 1341]
June 14, 2024
Appellate Division, Fourth Department
[*1]
The People of the State of New York, Respondent,
v
Allen Kazmierczak, Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Axelle Lecomte Mathewson of counsel), for defendant-appellant.
John J. Flynn, District Attorney, Buffalo (Michael J. Hillery of counsel), for respondent.
Appeal from a judgment of the Supreme Court, Erie County (Russell P. Buscaglia, A.J.), rendered December 7, 2020. The judgment convicted defendant, upon his plea of guilty, of murder 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 murder in the second degree (Penal Law § 125.25 [1]). As defendant contends and the People correctly concede, defendant did not validly waive his right to appeal ( see People v Gandy , 221 AD3d 1599 , 1599 [4th Dept 2023], lv denied 40 NY3d 1092 [2024]; People v Franklin , 217 AD3d 1427 , 1427 [4th Dept 2023]; see generally People v Thomas , 34 NY3d 545 , 565-566 [2019], cert denied 589 US —, 140 S Ct 2634 [2020]). Nevertheless, we conclude that the sentence is not unduly harsh or severe. Present—Smith, J.P., Curran, Montour, Nowak and DelConte, JJ..