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

723
KA 11-01263
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, PERADOTTO, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

ANTHONY RIVERA, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Russell
P. Buscaglia, A.J.), rendered May 18, 2011. The judgment convicted
defendant, upon his plea of guilty, of burglary in the second degree
(two counts) and burglary in the third 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 two counts of burglary in the second degree
(Penal Law § 140.25 [2]) and one count of burglary in the third degree
(§ 140.20). We agree with defendant that his waiver of the right to
appeal does not encompass his challenge to the severity of the
sentence because he waived his right to appeal before Supreme Court
informed him of the potential periods of imprisonment that could be
imposed (see People v Mingo, 38 AD3d 1270, 1271; see generally People
v Lococo, 92 NY2d 825, 827). Nevertheless, we conclude that the
sentence is not unduly harsh or severe.




Entered:    June 8, 2012                           Frances E. Cafarell
                                                   Clerk of the Court
