           SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

593
KA 12-00215
PRESENT: SMITH, J.P., FAHEY, CARNI, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

MARCUS LANE, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (BARBARA J. DAVIES 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 (Russell
P. Buscaglia, A.J.), rendered January 24, 2012. The judgment
convicted defendant, upon his plea of guilty, of robbery 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 robbery in the first degree (Penal Law § 160.15
[4]), defendant contends that the waiver of the right to appeal is not
valid, and he 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 maximum term of incarceration (see People v Newman, 21 AD3d
1343, 1343; see generally People v Lococo, 92 NY2d 825, 827), 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, we conclude that the sentence is not unduly harsh or
severe.




Entered:   June 7, 2013                            Frances E. Cafarell
                                                   Clerk of the Court
