RAVARINI, ANTHONY J., PEOPLE v ( 2012 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
843
KA 11-00846
PRESENT: SCUDDER, P.J., SMITH, CENTRA, SCONIERS, AND MARTOCHE, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
ANTHONY J. RAVARINI, DEFENDANT-APPELLANT.
DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (MARY-JEAN BOWMAN OF
COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (LAURA T. BITTNER OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Niagara County Court (Mark A.
Violante, A.J.), rendered April 6, 2011. The judgment convicted
defendant, upon his plea of guilty, of attempted assault 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 attempted assault in the second degree (Penal Law §§
110.00, 120.05 [2]), defendant contends that the waiver of the right
to appeal is not valid and challenges the severity of the sentence.
Although the record establishes that defendant knowingly, voluntarily
and intelligently waived the right to appeal (see generally People v
Lopez, 6 NY3d 248, 256), we conclude that the valid waiver of the
right to appeal does not encompass the challenge to the severity of
the sentence because County Court failed to advise defendant of the
potential periods of incarceration or the potential maximum term of
incarceration (see People v Newman, 21 AD3d 1343; People v McLean, 302
AD2d 934; cf. People v Lococo, 92 NY2d 825, 827; People v Hidalgo, 91
NY2d 733, 737), and there was no specific sentence promise at the time
of the waiver (cf. People v Semple, 23 AD3d 1058, 1059, lv denied 6
NY3d 852). Nevertheless, on the merits, we conclude that the sentence
is not unduly harsh or severe.
Entered: June 29, 2012 Frances E. Cafarell
Clerk of the Court