THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. SHELBY WALLACE DEFENDANT APPELLANT (2016)

Supreme Court, Appellate Division, Fourth Department.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. SHELBY L. WALLACE, DEFENDANT–APPELLANT.

KA 14–01611

Decided: July 01, 2016

PRESENT: PERADOTTO, J.P., CARNI, CURRAN, TROUTMAN, AND SCUDDER, JJ.

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (TIMOTHY P. MURPHY OF COUNSEL), FOR DEFENDANT–APPELLANT. MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO (ASHLEY R. LOWRY 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 attempted assault in the second degree (Penal Law §§ 110.00, 120.05[2] ). Contrary to the contention of defendant and the “concession” of the People, we conclude that defendant's valid waiver of the right to appeal encompasses his challenge to the severity of the sentence (see People v. Lopez, 6 NY3d 248, 256). Supreme Court advised defendant of the maximum sentence that could be imposed (see People v. Lococo, 92 N.Y.2d 825, 827), and the record, which includes an oral and written waiver of the right to appeal, establishes that defendant understood that he was waiving his right to appeal both the conviction and the sentence (cf. People v. Maracle, 19 NY3d 925, 928).

Frances E. Cafarell

Clerk of the Court

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