| People v Shaffner |
| 2012 NY Slip Op 05292 [96 AD3d 1689] |
| June 29, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Joseph G.Shaffner, Appellant. |
—[*1]
Appeal from a judgment of the Allegany County Court (Thomas P. Brown, J.), renderedJanuary 13, 2010. The judgment convicted defendant, upon his plea of guilty, of burglary in thefirst degree.
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 ofburglary in the first degree (Penal Law § 140.30 [2]). Upon "considering all the relevantfacts and circumstances surrounding [defendant's] waiver" of the right to appeal, we agree withdefendant that the record fails to demonstrate that the waiver was knowingly, intelligently andvoluntarily entered (People v Seaberg, 74 NY2d 1, 11 [1989]; see People v Lopez, 6 NY3d 248,256 [2006]). Thus, we consider the merits of his challenge to the severity of the sentence (cf.Lopez, 6 NY3d at 255). Contrary to defendant's contention, however, the sentence is notrendered unduly harsh or severe by the fact that his codefendant received a lesser sentence (see People v Whitehead, 49 AD3d1242 [2008]), or by the fact that defendant was offered a lesser sentence as part of an earlierplea bargain. The sentence otherwise is not unduly harsh or severe. To the extent that defendant'scontention that he was denied effective assistance of counsel at sentencing survives his guiltyplea, we conclude that it lacks merit (seePeople v LaCroce, 83 AD3d 1388, 1388 [2011], lv denied 17 NY3d 807[2011]). Defendant "receive[d] an advantageous plea and nothing in the record casts doubt on theapparent effectiveness of counsel" (People v Ford, 86 NY2d 397, 404 [1995]).Present—Scudder, P.J., Carni, Lindley and Martoche, JJ.