People v. Scott

Appeal from a judgment of the Supreme Court, Erie County (Russell E Buscaglia, A.J.), rendered May 25, 2011. The judgment convicted defendant, upon his plea of guilty, of rape in the first degree (two counts).

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

Memorandum: On appeal from a judgment convicting him upon his plea of guilty of two counts of rape in the first degree (Fenal Law § 130.35 [4]), 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 NY3d 248, 256 [2006]), 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 AD3d 1343, 1343 [2005]; see generally People v Lococo, 92 NY2d 825, 827 [1998]), and there was no specific sentence promise at the time of the waiver (cf. People v Semple, 23 AD3d 1058, 1059 [2005], lv denied 6 NY3d 852 [2006]). Nevertheless, we conclude that the sentence is not unduly harsh or severe. Present— Centra, J.P, Peradotto, Garni, Sconiers and Whalen, JJ.