People v. Richardson

• Decision Date: 29 April 2016
• Citation: 29 N.Y.S.3d 212 (Mem),138 A.D.3d 1480,2016 N.Y. Slip Op. 03351
• Parties: The PEOPLE of the State of New York, Respondent, v. Eric L. RICHARDSON, Defendant–Appellant. (Appeal No. 1.).
• Court: New York Supreme Court — Appellate Division

138 A.D.3d 1480

29 N.Y.S.3d 212 (Mem)

2016 N.Y. Slip Op. 03351

The PEOPLE of the State of New York, Respondent,

v.Eric L. RICHARDSON, Defendant–Appellant. (Appeal No. 1.).

Supreme Court, Appellate Division, Fourth Department, New York.

April 29, 2016.

Appeal from a judgment of the Supreme Court, Erie County (Ronald H. Tills, A.J.), rendered December 23, 2005. The judgment convicted defendant, upon his plea of guilty, of burglary in the second degree.

The Legal Aid Bureau of Buffalo, Inc., Buffalo (Timothy P. Murphy of Counsel), for Defendant–Appellant.

Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of Counsel), for Respondent.

MEMORANDUM:

In appeal No. 1, defendant appeals from a judgment convicting him upon his plea of guilty of burglary in the second degree (Penal Law § 140.25[2]

), and in appeal No. 2, he appeals from a judgment convicting him upon his plea of guilty of a separate charge of burglary in the second degree (§ 140.25[2] ). Contrary to the contention of defendant in both appeals, his waiver of the right to appeal was knowingly, voluntarily and intelligently entered (see generally

People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). We conclude, however, that the valid waiver of the right to appeal does not encompass the challenge to the severity of the sentence in each appeal inasmuch as Supreme Court failed to advise defendant “that he was also waiving his right to appeal the harshness of his sentence” (People v. Pimentel, 108 A.D.3d 861, 862, 969 N.Y.S.2d 574, lv. denied 21 N.Y.3d 1076, 974 N.Y.S.2d 325, 997 N.E.2d 150 ; see

People v. Peterson, 111 A.D.3d 1412, 1412, 974 N.Y.S.2d 864 ). Nevertheless, on the merits, we conclude that the sentence in each appeal is not unduly harsh or severe.

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

CENTRA

, J.P., CARNI, DeJOSEPH, CURRAN, and SCUDDER, JJ., concur.