People v. Felvus

115 A.D.3d 1219, 982 N.Y.S.2d 266

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 21, 2014
• Status: Published

Opinion

Appeal from a judgment of the Niagara County Court (Sara S. Farkas, J.), rendered October 11, 2012. The judgment convicted defendant, upon his plea of guilty, of attempted rape in the first 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 rape in the first degree (Penal Law §§ 110.00, 130.35 [3]; 110.05 [4]), defendant contends that the waiver of the right to appeal is not valid, and he challenges the severity of the sentence. Although the record establishes that defendant knowingly, voluntarily and intelligently waived the right to appeal (see generally People v Lopez, 6 NY3d 248, 256 [2006]), we agree with defendant that the valid waiver of the right to appeal does not encompass his challenge to the severity of the sentence because the record of the plea allocution concerning the waiver of defendant’s right to appeal refers only to the conviction and does not establish that defendant was also waiving his right to appeal the severity of the sentence (see People v Maracle, 19 NY3d 925, 928 [2012]). Nevertheless, we conclude that the sentence is not unduly harsh or severe.

Present — Smith, J.P., Fahey, Carni, Sconiers and Valentino, JJ.