SAELI, SAMUEL J., PEOPLE v ( 2016 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
21
KA 13-01756
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, CARNI, AND SCUDDER, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
SAMUEL J. SAELI, DEFENDANT-APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KRISTIN M. PREVE OF
COUNSEL), FOR DEFENDANT-APPELLANT.
ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (THOMAS B. LITSKY OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Supreme Court, Erie County
(Christopher J. Burns, J.), rendered June 19, 2013. The judgment
convicted defendant, upon his plea of guilty, of offering a false
instrument for filing in the first degree.
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 offering a false instrument for filing in
the first degree (Penal Law former § 175.35). We agree with defendant
that his waiver of the right to appeal does not encompass his
challenge to the severity of the sentence. “[N]o mention was made on
the record during the course of the allocution concerning the waiver
of defendant’s right to appeal his conviction that he was also waiving
his right to appeal the harshness of his sentence” (People v Pimentel,
108 AD3d 861, 862, lv denied 21 NY3d 1076; see People v Maracle, 19
NY3d 925, 928; People v Peterson, 111 AD3d 1412, 1412). Although
defendant executed a written waiver of the right to appeal in which he
waived “any and all sentencing matters,” we conclude that the written
waiver “does not foreclose our review of the severity of the sentence
because [Supreme Court] ‘did not inquire of defendant whether he
understood the written waiver or whether he had even read the waiver
before signing it’ ” (People v Donaldson, 130 AD3d 1486, 1486-1487,
quoting People v Bradshaw, 18 NY3d 257, 262). We nevertheless
conclude that the sentence of 6 months of incarceration and 5 years of
probation is not unduly harsh or severe. Defendant has completed
serving the term of incarceration, and the period of probation is
precisely what defense counsel requested at sentencing. In any event,
we conclude that the sentence is appropriate in light of defendant’s
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KA 13-01756
criminal history and the favorable nature of the plea bargain.
Entered: February 5, 2016 Frances E. Cafarell
Clerk of the Court