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

677
KA 10-01857
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                                     MEMORANDUM AND ORDER

JEAN PIERRE VILLAFANE, 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 (ASHLEY R. SMALL OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County
(Christopher J. Burns, J.), rendered July 6, 2010. The judgment
convicted defendant, upon his plea of guilty, of burglary 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 burglary in the first degree (Penal Law § 140.30
[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 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.




Entered:   June 15, 2012                                Frances E. Cafarell
                                                        Clerk of the Court
