JACOBS, DENNIS, PEOPLE v ( 2012 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
725
KA 11-00449
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, PERADOTTO, AND SCONIERS, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
DENNIS JACOBS, DEFENDANT-APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KAREN RUSSO-MCLAUGHLIN
OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Supreme Court, Erie County
(Christopher J. Burns, J.), rendered November 4, 2009. The judgment
convicted defendant, upon his plea of guilty, of attempted assault in
the first 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 first degree (Penal Law §§
110.00, 120.10 [1]), 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 Supreme 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 in light of the severity of the offense
and the favorable nature of the plea agreement.
Entered: June 15, 2012 Frances E. Cafarell
Clerk of the Court