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

820
KA 10-01431
PRESENT: SCUDDER, P.J., CARNI, LINDLEY, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

JOSEPH G. SHAFFNER, DEFENDANT-APPELLANT.


DOMINIC PAUL CANDINO, BUFFALO, FOR DEFENDANT-APPELLANT.


     Appeal from a judgment of the Allegany County Court (Thomas P.
Brown, J.), rendered January 13, 2010. 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: Defendant appeals from a judgment convicting him
upon his plea of guilty of burglary in the first degree (Penal Law §
140.30 [2]). Upon “considering all the relevant facts and
circumstances surrounding [defendant’s] waiver” of the right to
appeal, we agree with defendant that the record fails to demonstrate
that the waiver was knowingly, intelligently and voluntarily entered
(People v Seaberg, 74 NY2d 1, 11; see People v Lopez, 6 NY3d 248,
256). Thus, we consider the merits of his challenge to the severity
of the sentence (cf. Lopez, 6 NY3d at 255). Contrary to defendant’s
contention, however, the sentence is not rendered unduly harsh or
severe by the fact that his codefendant received a lesser sentence
(see People v Whitehead, 49 AD3d 1242), or by the fact that defendant
was offered a lesser sentence as part of an earlier plea bargain. The
sentence otherwise is not unduly harsh or severe. To the extent that
defendant’s contention that he was denied effective assistance of
counsel at sentencing survives his guilty plea, we conclude that it
lacks merit (see People v LaCroce, 83 AD3d 1388, 1388, lv denied 17
NY3d 807). Defendant “receive[d] an advantageous plea and nothing in
the record casts doubt on the apparent effectiveness of counsel”
(People v Ford, 86 NY2d 397, 404).




Entered:   June 29, 2012                           Frances E. Cafarell
                                                   Clerk of the Court
