Opinion
1328 KA 13-01145.
01-02-2015
The PEOPLE of the State of New York, Respondent, v. Robert LEISER, Jr., also known as Robert P. Leiser, Jr., also known as Robert P. Leiser, II, also known as Robert P. Leiser, also known as Robert Leiser, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Nicholas P. DiFonzo of Counsel), for Defendant–Appellant. Lawrence Friedman, District Attorney, Batavia (William G. Zickl of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Nicholas P. DiFonzo of Counsel), for Defendant–Appellant.
Lawrence Friedman, District Attorney, Batavia (William G. Zickl of Counsel), for Respondent.
PRESENT: CENTRA, J.P., FAHEY, VALENTINO, WHALEN, and DeJOSEPH, JJ.
Opinion
MEMORANDUM:On appeal from a judgment convicting him upon his plea of guilty of attempted assault in the second degree (Penal Law §§ 110.00, 120.05 [2 ] ), defendant contends that the waiver of the right to appeal is not valid and challenges the severity of the sentence. Although the record establishes that defendant knowingly, voluntarily and intelligently waived the right to appeal (see generally People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ), we conclude that the valid waiver of the right to appeal does not encompass the challenge to the severity of the sentence because County Court did not advise defendant, at the time of his plea, of the potential term of incarceration that he would face if he violated the terms of his release under supervision (see People v. Eron, 79 A.D.3d 1774, 1775, 914 N.Y.S.2d 849 ). Nevertheless, on the merits, we conclude that the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.