People v. Harper

23 A.D.3d 1137, 803 N.Y.S.2d 477

Opinion

Appeal from a judgment of the Monroe County Court (Elma A. Bellini, J.), rendered March 11, 2003. The judgment convicted defendant, upon his plea of guilty, of attempted burglary in the third degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of attempted burglary in the third degree (Penal Law §§ 110.00, 140.20). We agree with defendant that his waiver of the right to appeal was invalid (see People v Fehr, 303 AD2d 1039, 1039-1040 [2003], lv denied 100 NY2d 538 [2003]; cf. People v Lococo, 92 NY2d 825, 827 [1998]), and thus the waiver does not encompass defendant’s challenge to the severity of the sentence (cf. Lococo, 92 NY2d at 827). We nevertheless conclude that the sentence is not unduly harsh or severe. Present—Green, J.P., Scudder, Kehoe, Martoche and Hayes, JJ.