THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. ANTHONY RIVERA DEFENDANT APPELLANT (2012)

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

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. ANTHONY RIVERA, DEFENDANT–APPELLANT.

KA 11–01263

Decided: June 08, 2012

PRESENT: SCUDDER, P.J., CENTRA, FAHEY, PERADOTTO, AND SCONIERS, JJ.

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF COUNSEL), FOR DEFENDANT–APPELLANT. FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of two counts of burglary in the second degree (Penal Law § 140.25 [2] ) and one count of burglary in the third degree (§ 140.20). We agree with defendant that his waiver of the right to appeal does not encompass his challenge to the severity of the sentence because he waived his right to appeal before Supreme Court informed him of the potential periods of imprisonment that could be imposed (see People v. Mingo, 38 AD3d 1270, 1271; see generally People v. Lococo, 92 N.Y.2d 825, 827). Nevertheless, we conclude that the sentence is not unduly harsh or severe.

Frances E. Cafarell

Clerk of the Court

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