PEOPLE v. BARKER (1999)

Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. Nathaniel BARKER, Defendant-Appellant.

Decided: November 12, 1999

PRESENT: GREEN, J.P., LAWTON, HAYES, HURLBUTT and BALIO, JJ.

Karen C. Russo-McLaughlin, for defendant-appellant. Paul J. Williams, III, Orchard Park, for plaintiff-respondent.

Defendant appeals from a judgment convicting him upon a guilty plea of robbery in the third degree (Penal Law § 160.05). The record establishes that defendant's waiver of the right to appeal was voluntary, knowing and intelligent (see, People v. DeJesus, 248 A.D.2d 1023, 670 N.Y.S.2d 140, lv. denied 92 N.Y.2d 879, 678 N.Y.S.2d 26, 700 N.E.2d 564; People v. Zimmerman, 219 A.D.2d 848, 631 N.Y.S.2d 951, lv. denied 88 N.Y.2d 856, 644 N.Y.S.2d 702, 667 N.E.2d 352). “Because Supreme Court did not advise defendant of the potential periods of incarceration, the waiver by defendant of the right to appeal does not encompass his challenge to the severity of the sentence” (People v. Wynn, 262 A.D.2d 1052, 691 N.Y.S.2d 807; see, People v. Shea, 254 A.D.2d 512, 679 N.Y.S.2d 428). The sentence is neither unduly harsh nor severe.

Judgment unanimously affirmed.

MEMORANDUM:

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