Opinion
KA 03-00549.
Decided June 14, 2004.
Appeal from a judgment of the Monroe County Court (Elma A. Bellini, J.), rendered January 24, 2003. The judgment convicted defendant, upon his plea of guilty, of attempted criminal sale of a controlled substance in the third degree.
EDWARD J. NOWAK, PUBLIC DEFENDER, ROCHESTER (TIMOTHY P. DONAHER OF COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (MARGARET A. JONES OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Before: PRESENT: PIGOTT, JR., P.J., PINE, KEHOE, MARTOCHE, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of attempted criminal sale of a controlled substance in the third degree (Penal Law §§ 110.00, 220.39), defendant contends that the enhanced sentence imposed by County Court is unduly harsh and severe. Contrary to the People's contention, the waiver by defendant of the right to appeal does not encompass his present contention because the court failed to advise defendant of the potential periods of incarceration that could be imposed, including the potential periods of incarceration for an enhanced sentence ( see People v. Harris, 289 A.D.2d 1068, lv denied 98 N.Y.2d 637), before he waived his right to appeal ( see People v. Lococo, 92 N.Y.2d 825, 827; People v. Webb, 299 A.D.2d 955, lv denied 99 N.Y.2d 565). We conclude, however, that the sentence is not unduly harsh or severe. Defendant's remaining contention regarding the presentence report is not preserved for our review ( see CPL 470.05) and, in any event, is without merit ( see 390.20 [4] [iii]).