WARE, III, JACOB E., PEOPLE v

Appellate Division of the Supreme Court of New York

WARE, III, JACOB E., PEOPLE v

117 A.D.3d 1554, 984 N.Y.S.2d 916

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

DecidedMay 9, 2014

DocketKA 12-02201

StatusPublished

This text of 117 A.D.3d 1554 (WARE, III, JACOB E., PEOPLE v) 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

WARE, III, JACOB E., PEOPLE v, 117 A.D.3d 1554, 984 N.Y.S.2d 916 (N.Y. Ct. App. 2014).

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Opinion

— Appeal from a judgment of the Niagara County Court (Sara S. Farkas, J.), rendered July 12, 2012. The judgment convicted defendant, upon his plea of guilty, of burglary in the second degree.

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

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of burglary in the second degree (Penal Law § 140.25 [2]). 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 conclude that the valid waiver of the right to appeal does not encompass his challenge to the severity of the sentence because “no mention was made on the record during the course of the allocution concerning the waiver of defendant’s right to appeal” with respect to his conviction that he was also waiving *1555 his right to appeal any issue concerning the severity of the sentence (People v Pimentel, 108 AD3d 861, 862 [2013], lv denied 21 NY3d 1076 [2013]; see People v Maracle, 19 NY3d 925, 928 [2012]). Nevertheless, on the merits, we conclude that the sentence is not unduly harsh or severe.

Present—Smith, J.R, Fahey, Peradotto, Sconiers and Valentino, JJ.

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— Appeal from a judgment of the Niagara County Court (Sara S. Farkas, J.), rendered July 12, 2012. The judgment convicted defendant, upon his plea of guilty, of burglary in the second degree.

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

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of burglary in the second degree (Penal Law § 140.25 [2]). 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 conclude that the valid waiver of the right to appeal does not encompass his challenge to the severity of the sentence because “no mention was made on the record during the course of the allocution concerning the waiver of defendant’s right to appeal” with respect to his conviction that he was also waiving *1555 his right to appeal any issue concerning the severity of the sentence (People v Pimentel, 108 AD3d 861, 862 [2013], lv denied 21 NY3d 1076 [2013]; see People v Maracle, 19 NY3d 925, 928 [2012]). Nevertheless, on the merits, we conclude that the sentence is not unduly harsh or severe.

Present—Smith, J.R, Fahey, Peradotto, Sconiers and Valentino, JJ.

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117 A.D.3d 1554, 984 N.Y.S.2d 916, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ware-iii-jacob-e-people-v-nyappdiv-2014.

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