THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. JEREMY CLARK DEFENDANT APPELLANT (2012)

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

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. JEREMY CLARK, DEFENDANT–APPELLANT.

KA 10–02500

Decided: June 08, 2012

PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND MARTOCHE, JJ.

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT B. HALLBORG, JR., OF COUNSEL), FOR DEFENDANT–APPELLANT. FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MICHELLE L. CIANCIOSA OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

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

Memorandum: On appeal from a judgment convicting him, upon his plea of guilty, of attempted burglary in the second degree (Penal Law §§ 110.00, 140.25[2] ), defendant contends that the waiver of the right to appeal was not knowingly, intelligently and voluntarily entered. We reject that contention (see generally People v. Lopez, 6 NY3d 248, 256). The valid waiver by defendant of the right to appeal does not encompass his contention with respect to the severity of the sentence, however, because the record establishes that Supreme Court “failed to advise defendant of the ‘potential periods of incarceration that could be imposed before he waived his right to appeal’ “ (People v. McLean, 302 A.D.2d 934; cf. People v. Lococo, 92 N.Y.2d 825, 827). We conclude, however, that the sentence is not unduly harsh or severe.

Frances E. Cafarell

Clerk of the Court

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