June 7, 2013
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
MARCUS LANE, DEFENDANT-APPELLANT.
Appeal from a judgment of the Supreme Court, Erie County (Russell P. Buscaglia, A.J.), rendered January 24, 2012. The judgment convicted defendant, upon his plea of guilty, of robbery in the first degree.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (BARBARA J. DAVIES OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., FAHEY, CARNI, VALENTINO, AND WHALEN, JJ.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting himupon his plea of guilty of robbery in the first degree (Penal Law § 160.15 ), defendant contends that the waiver of the right to appeal is not valid, and he 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), 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 maximum term of incarceration (see People v Newman, 21 A.D.3d 1343, 1343; see generally People v Lococo, 92 N.Y.2d 825, 827), and there was no specific sentence promise at the time of the waiver (cf. People v Semple, 23 A.D.3d 1058, 1059, lv denied 6 N.Y.3d 852). Nevertheless, we conclude that the sentence is not unduly harsh or severe.