People v. Virgil

Appellate Division of the Supreme Court of New York

People v. Virgil

108 A.D.3d 1136, 967 N.Y.S.2d 852

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 5, 2013

StatusPublished

This text of 108 A.D.3d 1136 (People v. Virgil) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Virgil, 108 A.D.3d 1136, 967 N.Y.S.2d 852 (N.Y. Ct. App. 2013).

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Opinion

Appeal from a judgment of the Supreme Court, Erie County (Russell P Buscaglia, A.J.), rendered October 19, 2009. The judgment convicted defendant, upon his plea of guilty, of burglary in the first degree.

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

[1137]*1137Memorandum: On appeal from a judgment convicting him upon his plea of guilty of burglary in the first degree (Penal Law § 140.30 [1]), defendant contends that the waiver of the right to appeal is not valid and that the sentence is unduly harsh and severe. Although defendant knowingly, voluntarily and intelligently waived the right to appeal (see generally People v Lopez, 6 NY3d 248, 256 [2006]), we conclude that the valid waiver of the right to appeal does not encompass the challenge to the severity of the sentence because Supreme Court “failed to advise defendant of the potential periods of incarceration or the potential maximum term of incarceration . . . , and there was no specific sentence promise at the time of the waiver” (People v Ravarini, 96 AD3d 1700, 1701 [2012], lv denied 20 NY3d 1014 [2013]; see People v Kelly, 96 AD3d 1700, 1700 [2012]). Nevertheless, on the merits, we conclude that the sentence is not unduly harsh or severe. Present — Scudder, EJ., Feradotto, Lindley, Whalen and Martoche, JJ.

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Appeal from a judgment of the Supreme Court, Erie County (Russell P Buscaglia, A.J.), rendered October 19, 2009. The judgment convicted defendant, upon his plea of guilty, of burglary in the first degree.

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

[1137]*1137Memorandum: On appeal from a judgment convicting him upon his plea of guilty of burglary in the first degree (Penal Law § 140.30 [1]), defendant contends that the waiver of the right to appeal is not valid and that the sentence is unduly harsh and severe. Although defendant knowingly, voluntarily and intelligently waived the right to appeal (see generally People v Lopez, 6 NY3d 248, 256 [2006]), we conclude that the valid waiver of the right to appeal does not encompass the challenge to the severity of the sentence because Supreme Court “failed to advise defendant of the potential periods of incarceration or the potential maximum term of incarceration . . . , and there was no specific sentence promise at the time of the waiver” (People v Ravarini, 96 AD3d 1700, 1701 [2012], lv denied 20 NY3d 1014 [2013]; see People v Kelly, 96 AD3d 1700, 1700 [2012]). Nevertheless, on the merits, we conclude that the sentence is not unduly harsh or severe. Present — Scudder, EJ., Feradotto, Lindley, Whalen and Martoche, JJ.

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Bluebook (online)

108 A.D.3d 1136, 967 N.Y.S.2d 852, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-virgil-nyappdiv-2013.

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