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

382
KA 10-01179
PRESENT: SMITH, J.P., PERADOTTO, CARNI, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CHARLES J. ALLEN, ALSO KNOWN AS CJ,
DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


CHARLES A. MARANGOLA, MORAVIA, FOR DEFENDANT-APPELLANT.

JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Cayuga County Court (Mark H.
Fandrich, A.J.), rendered December 10, 2009. The judgment convicted
defendant, upon his plea of guilty, of arson in the third degree.

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

     Memorandum: In appeal No. 1, defendant appeals from a judgment
convicting him upon his plea of guilty of arson in the third degree
(Penal Law § 150.10 [1]). In appeal No. 2, defendant appeals from a
judgment convicting him upon his plea of guilty of burglary in the
third degree (§ 140.20). We note at the outset that defendant’s
contentions on appeal concern only the judgment in appeal No. 1, and
we therefore dismiss appeal No. 2.

     With respect to the judgment in appeal No. 1, we reject the
contention of defendant that his sentence violated the terms of the
plea agreement (see People v Abdallah, 50 AD3d 1312, 1313; see also
People v Tatro, 8 AD3d 823, 824, lv denied 3 NY3d 682). During the
plea proceeding, the prosecutor stated that the People “would
consider” any cooperation by defendant with respect to uncharged
burglaries in determining whether to recommend a reduced sentence.
The prosecutor, however, clearly indicated that defendant “should not
plead [guilty] expecting anything other than” the promised maximum
sentence, and County Court advised defendant of that maximum sentence
before accepting his plea. The record belies the further contention
of defendant that the People and the court failed to consider the
extent of his cooperation with law enforcement prior to sentencing.

     Finally, we agree with defendant that his valid waiver of the
right to appeal does not encompass his challenge to the severity of
                                 -2-                           382
                                                         KA 10-01179

the sentence, inasmuch as he waived his right to appeal before he was
advised of the maximum possible sentence (see People v Farrell, 71
AD3d 1507, lv denied 15 NY3d 804). We nevertheless conclude that the
sentence is not unduly harsh or severe.




Entered:   March 23, 2012                       Frances E. Cafarell
                                                Clerk of the Court
