People v. Burgess

People v Burgess (2020 NY Slip Op 00929)

People v Burgess

2020 NY Slip Op 00929

Decided on February 7, 2020

Appellate Division, Fourth Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 7, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: PERADOTTO, J.P., CARNI, CURRAN, WINSLOW, AND DEJOSEPH, JJ.

22 KA 18-01046

[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

v

MICHAEL BURGESS, DEFENDANT-APPELLANT.

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF COUNSEL), FOR DEFENDANT-APPELLANT.

JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. LOWRY OF COUNSEL), FOR RESPONDENT.

Appeal from a judgment of the Erie County Court (Sheila A. DiTullio, J.), rendered April 17, 2018. The judgment convicted defendant upon a plea of guilty of attempted burglary in the third 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 burglary in the third degree (Penal Law

§§ 110.00, 140.20), defendant contends that his waiver of the right to appeal is not valid, and he challenges the severity of the sentence. Although we agree with defendant that the waiver of the right to appeal is invalid (see generally People v Hamilton, 49 AD3d 1163, 1164 [4th Dept 2008]; People v Brown, 296 AD2d 860, 860 [4th Dept 2002], lv denied 98 NY2d 767 [2002]), we nevertheless conclude that the sentence is not unduly harsh or severe.

Entered: February 7, 2020

Mark W. Bennett

Clerk of the Court