Opinion
99 KA 17–00509
02-01-2019
The PEOPLE of the State of New York, Respondent, v. Gerald MAY, Defendant–Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SHERRY A. CHASE OF COUNSEL), FOR DEFENDANT–APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DONNA A. MILLING OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SHERRY A. CHASE OF COUNSEL), FOR DEFENDANT–APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DONNA A. MILLING OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, DEJOSEPH, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of arson in the fourth degree ( Penal Law § 150.05[1] ), defendant contends that his waiver of the right to appeal does not encompass his challenge to the severity of the sentence. We reject that contention. The record establishes that defendant violated the plea agreement by lying to the probation department during the presentence investigation. "[B]ecause [Supreme Court] advised defendant of the maximum sentence that could be imposed upon [a violation of the plea agreement], ‘the waiver by defendant of the right to appeal encompasses [his] further contention that the enhanced sentence is unduly harsh or severe’ " ( People v. VanDeViver, 56 A.D.3d 1118, 1119, 867 N.Y.S.2d 586 [4th Dept. 2008], lv denied 11 N.Y.3d 931, 874 N.Y.S.2d 16, 902 N.E.2d 450 [2009], reconsideration denied 12 N.Y.3d 788, 879 N.Y.S.2d 65, 906 N.E.2d 1099 [2009] ; see People v. Espino, 279 A.D.2d 798, 800, 718 N.Y.S.2d 729 [3d Dept. 2001] ; cf. People v. Johnson, 14 N.Y.3d 483, 487, 903 N.Y.S.2d 299, 929 N.E.2d 361 [2010] ).