Opinion
21 KA 13-01756.
02-05-2016
The PEOPLE of the State of New York, Respondent, v. Samuel J. SAELI, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Kristin M. Preve of Counsel), for Defendant–Appellant. Eric T. Schneiderman, Attorney General, Albany (Thomas B. Litsky of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Kristin M. Preve of Counsel), for Defendant–Appellant.
Eric T. Schneiderman, Attorney General, Albany (Thomas B. Litsky of Counsel), for Respondent.
Opinion
MEMORANDUM:
Defendant appeals from a judgment convicting him upon his plea of guilty of offering a false instrument for filing in the first degree (Penal Law former § 175.35). We agree with defendant that his waiver of the right to appeal does not encompass his challenge to the severity of the sentence. “[N]o mention was made on the record during the course of the allocution concerning the waiver of defendant's right to appeal his conviction that he was also waiving his right to appeal the harshness of his sentence” (People v. Pimentel, 108 A.D.3d 861, 862, 969 N.Y.S.2d 574, lv. denied 21 N.Y.3d 1076, 974 N.Y.S.2d 325, 997 N.E.2d 150; see People v. Maracle, 19 N.Y.3d 925, 928, 950 N.Y.S.2d 498, 973 N.E.2d 1272; People v. Peterson, 111 A.D.3d 1412, 1412, 974 N.Y.S.2d 864). Although defendant executed a written waiver of the right to appeal in which he waived “any and all sentencing matters,” we conclude that the written waiver “does not foreclose our review of the severity of the sentence because [Supreme Court] ‘did not inquire of defendant whether he understood the written waiver or whether he had even read the waiver before signing it’ ” (People v. Donaldson, 130 A.D.3d 1486, 1486–1487, 13 N.Y.S.3d 741, quoting People v. Bradshaw, 18 N.Y.3d 257, 262, 938 N.Y.S.2d 254, 961 N.E.2d 645). We nevertheless conclude that the sentence of 6 months of incarceration and 5 years of probation is not unduly harsh or severe. Defendant has completed serving the term of incarceration, and the period of probation is precisely what defense counsel requested at sentencing. In any event, we conclude that the sentence is appropriate in light of defendant's criminal history and the favorable nature of the plea bargain.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
WHALEN, P.J., CENTRA, PERADOTTO, CARNI, and SCUDDER, JJ., concur.