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

89
KA 12-00705
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT

                     V                              MEMORANDUM AND ORDER

ANTHONY BROWN, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (VINCENT F. GUGINO OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DONNA A. MILLING OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Deborah
A. Haendiges, J.), rendered January 9, 2012. The judgment convicted
defendant, upon his plea of guilty, of attempted assault in the second
degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him, upon his
guilty plea, of attempted assault in the second degree (Penal Law §§
110.00, 120.05 [2]), defendant contends that his waiver of the right
to appeal does not encompass his challenge to the severity of his
sentence, and that the sentence is unduly harsh and severe. The
People correctly concede that the waiver of the right to appeal does
not preclude defendant from challenging his sentence inasmuch as
Supreme Court “failed to advise defendant of the potential periods of
incarceration or the potential maximum term of incarceration” (People
v Ravarini, 96 AD3d 1700, 1701, lv denied 20 NY3d 1014; see People v
Kelly, 96 AD3d 1700, 1700). Nevertheless, we reject defendant’s
challenge. We note in particular that the court sentenced defendant
to less than the maximum permitted by law, and defendant has already
been released to parole supervision. In addition, defendant has 10
prior criminal convictions, two of which are for felonies, and he
showed no remorse for his conduct.




Entered:   February 14, 2014                      Frances E. Cafarell
                                                  Clerk of the Court
