People v. Mayham

272 A.D.2d 951, 709 N.Y.S.2d 265, 2000 N.Y. App. Div. LEXIS 8223

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 10, 2000
• Status: Published

Opinion

—Judgment unanimously affirmed. Memorandum: On appeal from a judgment convicting her upon her plea of guilty of assault in the second degree (Penal Law § 120.05 [2]), defendant’s sole contention on appeal is that the sentence is unduly harsh or severe. Contrary to the People’s contention, defendant’s waiver of the right to appeal does not encompass the challenge to the severity of the sentence because defendant was not advised of the potential periods of incarceration (see, People v Cormack, 269 AD2d 815; People v Barker, 266 AD2d 846; People v Wynn, 262 AD2d 1052). We conclude, however, that the sentence imposed, six months of incarceration and five years of probation, is not unduly harsh or severe. (Appeal from Judgment of Supreme Court, Erie County, Wolfgang, J. — Assault, 2nd Degree.) Present — Pine, J. P., Hayes, Scudder and Kehoe, JJ.