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

783
KA 10-02371
PRESENT: SCUDDER, P.J., PERADOTTO, LINDLEY, WHALEN, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

QUENTIN L. VIRGIL, 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 (ASHLEY R. SMALL OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Russell
P. Buscaglia, A.J.), rendered October 19, 2009. 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
[1]), defendant contends that the waiver of the right to appeal is not
valid and that the sentence is unduly harsh and severe. Although
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 . . . , and there was
no specific sentence promise at the time of the waiver” (People v
Ravarini, 96 AD3d 1700, 1701, lv denied 20 NY3d 1014; see People v
Kelly, 96 AD3d 1700, 1700). Nevertheless, on the merits, we conclude
that the sentence is not unduly harsh or severe.




Entered:    July 5, 2013                           Frances E. Cafarell
                                                   Clerk of the Court
