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

733
KA 11-01377
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, CARNI, AND LINDLEY, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

TERRENCE M. DEARMYER, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KRISTIN M. PREVE 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 May 2, 2011. The judgment convicted
defendant, upon his plea of guilty, of attempted burglary 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
plea of guilty of attempted burglary in the second degree (Penal Law
§§ 110.00, 140.25 [2]), defendant contends that his waiver of the
right to appeal is unenforceable and that his sentence is unduly harsh
and severe. As the People correctly concede, defendant’s waiver of
the right to appeal does not encompass his challenge to the severity
of the sentence because his purported waiver of the right to appeal
occurred before Supreme Court advised him of the maximum sentence he
could receive (see People v Monaghan, 101 AD3d 1686, 1686; People v
Farrell, 71 AD3d 1507, 1507, lv denied 15 NY3d 804). Nevertheless, we
conclude that the sentence is not unduly harsh or severe. Although
defendant faced a maximum sentence of seven years’ imprisonment (see
Penal Law 70.06 [6] [c]), the court sentenced him to 4½ years’
imprisonment, which was only 1½ years more than the minimum sentence
permitted by law. We note that, according to the presentence
investigation report, defendant “failed to take any responsibility for
the present offense and showed no remorse” for the injuries he
inflicted upon the victim. We also note that defendant had been
sentenced to probation on a prior felony conviction, but violated the
conditions of probation and was resentenced to a term of
incarceration. Under the circumstances, we perceive no basis for
modifying defendant’s sentence as a matter of discretion in the
                                 -2-                           733
                                                         KA 11-01377

interest of justice (see CPL 470.15 [6] [b]).




Entered:   June 14, 2013                        Frances E. Cafarell
                                                Clerk of the Court
