BURNICE, ALBERT, PEOPLE v

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

641
KA 11-00414
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND DEJOSEPH, JJ.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

V MEMORANDUM AND ORDER

ALBERT BURNICE, DEFENDANT-APPELLANT.

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (MARY P. DAVISON OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.

Appeal from a judgment of the Monroe County Court (Richard A.
Keenan, J.), rendered December 17, 2010. The judgment convicted
defendant, upon his plea of guilty, of burglary in the second degree
(two counts).

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 to two counts of burglary in the second degree
(Penal Law § 140.25 [2]). We agree with defendant that the waiver of
the right to appeal was not valid inasmuch as it is not evident from
the record that County Court (Keenan, J.) determined that defendant
understood the consequences of that waiver (see People v Bradshaw, 18
NY3d 257, 264-265; People v Lopez, 6 NY3d 248, 256). Furthermore, the
court did not advise defendant that the waiver included a challenge to
the severity of the sentence (see People v Maracle, 19 NY3d 925, 928;
People v Pimentel, 108 AD3d 861, 862, lv denied 21 NY3d 1076). In any
event, we conclude that defendant’s challenge to the negotiated
sentence as unduly harsh and severe is without merit.

We reject defendant’s further contention that the court abused
its discretion by refusing to accept defendant’s initial plea to one
count of the indictment after defendant stated that the court
threatened and pressured him into accepting the plea (see People v
Mercado, 226 AD2d 1125, 1125, lv denied 88 NY2d 968). We also reject
defendant’s contention that County Court (Argento, J.) misapprehended
its authority when it failed to issue a “violent felony override” upon
the retirement of the judge who had reserved on defendant’s request
for such an override at the time of sentencing. Judge Argento
properly noted that there is no procedure for the issuance of such a
document. Indeed, “no regulation or statute provides for such a
 -2- 641
KA 11-00414

document” (People v Ellis, 123 AD3d 1054, 1054; see generally People v
Massey, 111 AD3d 1359, 1359). To the extent that the provisions of 7
NYCRR 1900.4 (c) (1) (iii) are utilized by the Department of
Corrections and Community Supervision in determining whether certain
inmates are eligible for institutional programming (see generally
People v Dozier, 109 AD3d 838, 840, lv denied 22 NY3d 1040; Matter of
Clow v Coughlin, 222 AD2d 781, 781-782), we note that defendant was
not prevented by the court from obtaining documentation from the court
or the District Attorney indicating that no weapons were used in these
offenses and that no person sustained a serious injury.

Entered: June 12, 2015 Frances E. Cafarell
Clerk of the Court