People v. Trisvan

8 A.D.3d 1067, 778 N.Y.S.2d 398, 2004 N.Y. App. Div. LEXIS 8081

Opinion

Appeal from a judgment of the Monroe County Court (Elma A. Bellini, J.), rendered January 24, 2003. The judgment convicted defendant, upon his plea of guilty, of attempted criminal sale of a controlled substance in the third degree.

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

Memorandum: On appeal from a judgment convicting him upon his plea of guilty of attempted criminal sale of a controlled substance in the third degree (Penal Law §§ 110.00, 220.39 [1]), defendant contends that the enhanced sentence imposed by County Court is unduly harsh and severe. Contrary to the People’s contention, the waiver by defendant of the right to appeal does not encompass his present contention because the court failed to advise defendant of the potential periods of incarceration that could be imposed, including the potential periods of incarceration for an enhanced sentence (see People v Harris, 289 AD2d 1068 [2001], lv denied 98 NY2d 637 [2002]), before he waived his right to appeal (see People v Lococo, 92 NY2d 825, 827 [1998]; People v Webb, 299 AD2d 955 [2002], lv denied 99 NY2d 565 [2002]). We conclude, however, that the sentence is not unduly harsh or severe. Defendant’s remaining contention regarding the presentence report is not preserved for our review (see CPL 470.05 [2]) and, in any event, is without merit (see CPL 390.20 [4] [iii]). Present—Pigott, Jr., P.J., Pine, Kehoe, Martoche and Hayes, JJ.