Opinion
2012-06-29
The PEOPLE of the State of New York, Respondent, v. Joseph G. SHAFFNER, Defendant–Appellant.
Appeal from a judgment of the Allegany County Court (Thomas P. Brown, J.), rendered January 13, 2010. The judgment convicted defendant, upon his plea of guilty, of burglary in the first degree.
Dominic Paul Candino, Buffalo, for defendant-appellant.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon his plea of guilty of burglary in the first degree (Penal Law § 140.30[2] ). Upon “considering all the relevant facts and circumstances surrounding [defendant's] waiver” of the right to appeal, we agree with defendant that the record fails to demonstrate that the waiver was knowingly, intelligently and voluntarily entered ( People v. Seaberg, 74 N.Y.2d 1, 11, 543 N.Y.S.2d 968, 541 N.E.2d 1022;see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145). Thus, we consider the merits of his challenge to the severity of the sentence ( cf. Lopez, 6 N.Y.3d at 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145). Contrary to defendant's contention, however, the sentence is not rendered unduly harsh or severe by the fact that his codefendant received a lesser sentence ( see People v. Whitehead, 49 A.D.3d 1242, 852 N.Y.S.2d 879), or by the fact that defendant was offered a lesser sentence as part of an earlier plea bargain. The sentence otherwise is not unduly harsh or severe. To the extent that defendant's contention that he was denied effective assistance of counsel at sentencing survives his guilty plea, we conclude that it lacks merit ( see People v. LaCroce, 83 A.D.3d 1388, 1388, 919 N.Y.S.2d 728,lv. denied17 N.Y.3d 807, 929 N.Y.S.2d 567, 953 N.E.2d 805). Defendant “receive [d] an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel” ( People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.