UFARES, DANIEL, PEOPLE v ( 2013 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1028
KA 10-01264
PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY, AND SCONIERS, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
DANIEL UFARES, DEFENDANT-APPELLANT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (KRISTEN MCDERMOTT OF
COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (MARIA MALDONADO
OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Onondaga County Court (William D.
Walsh, J.), rendered February 18, 2010. The judgment convicted
defendant, upon his plea of guilty, of robbery in the second degree.
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 robbery in the second degree (Penal Law § 160.10 [2]
[b]), defendant contends that his purported waiver of the right to
appeal is invalid and that his sentence is unduly harsh and severe.
Even assuming, arguendo, that defendant’s waiver of the right to
appeal is unenforceable because County Court, during the plea
colloquy, conflated the right to appeal with the rights automatically
forfeited upon the plea of guilty (see People v Sanborn, 107 AD3d
1457, 1458), we nevertheless reject defendant’s challenge to the
severity of the sentence. The record establishes that defendant has
six prior felony convictions, including three for robbery, and that he
was on parole when he committed the instant robbery. In addition,
pursuant to the plea agreement, the People agreed not to seek
persistent felony offender status for defendant, and defendant was not
prosecuted in federal court, where he faced a more severe sentence.
Entered: November 8, 2013 Frances E. Cafarell
Clerk of the Court