Opinion
2012-06-15
The PEOPLE of the State of New York, Respondent, v. Jean Pierre VILLAFANE, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Karen Russo–McLaughlin of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Ashley R. Small of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Karen Russo–McLaughlin of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Ashley R. Small of Counsel), for Respondent.
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, SCONIERS, and MARTOCHE, JJ.
MEMORANDUM:
On appeal from a judgment convicting him upon his plea of guilty of burglary in the first degree (Penal Law § 140.30[2] ), defendant contends that the waiver of the right to appeal is not valid and challenges the severity of the sentence. Although the record establishes that defendant knowingly, voluntarily and intelligently waived the right to appeal ( see generally People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145), we conclude that the valid waiver of the right to appeal does not encompass the challenge to the severity of the sentence because Supreme Court failed to advise defendant of the potential periods of incarceration or the potential maximum term of incarceration ( see People v. Newman, 21 A.D.3d 1343, 801 N.Y.S.2d 649;People v. McLean, 302 A.D.2d 934, 753 N.Y.S.2d 799;cf. People v. Lococo, 92 N.Y.2d 825, 827, 677 N.Y.S.2d 57, 699 N.E.2d 416;People v. Hidalgo, 91 N.Y.2d 733, 737, 675 N.Y.S.2d 327, 698 N.E.2d 46), and there was no specific sentence promise at the time of the waiver ( cf. People v. Semple, 23 A.D.3d 1058, 1059, 804 N.Y.S.2d 192,lv. denied6 N.Y.3d 852, 816 N.Y.S.2d 758, 849 N.E.2d 981). Nevertheless, on the merits, we conclude that the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.