           SUPREME COURT OF THE STATE OF NEW YORK
            Appellate Division, Fourth Judicial Department
107
KA 11-01655
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

CHRISTOPHER SCOTT, DEFENDANT-APPELLANT.


DANIEL M. GRIEBEL, BUFFALO, FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (NICHOLAS T. TEXIDO
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Russell
P. Buscaglia, A.J.), rendered May 25, 2011. The judgment convicted
defendant, upon his plea of guilty, of rape in the first degree (two
counts).

     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 two counts of rape in the first degree (Penal Law §
130.35 [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:   February 8, 2013                        Frances E. Cafarell
                                                   Clerk of the Court
