| People v Kelly |
| 2012 NY Slip Op 05310 [96 AD3d 1700] |
| June 29, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Rayna A.Kelly, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Donna A. Milling of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Russell P. Buscaglia, A.J.),rendered December 2, 2010. The judgment convicted defendant, upon her plea of guilty, of grandlarceny in the fourth degree and criminal possession of stolen property in the fourth degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting her upon her plea of guilty of grandlarceny in the fourth degree (Penal Law § 155.30 [1]) and criminal possession of stolenproperty in the fourth degree (§ 165.45 [1]), defendant contends that the waiver of the rightto appeal is not valid and challenges the severity of the sentence. Although the record establishesthat defendant knowingly, voluntarily, and intelligently waived the right to appeal (see generally People v Lopez, 6 NY3d248, 256 [2006]), we conclude that the valid waiver of the right to appeal does notencompass the challenge to the severity of the sentence because Supreme Court failed to advisedefendant of the potential periods of incarceration or the potential maximum term ofincarceration (see People vNewman, 21 AD3d 1343 [2005]; People v McLean, 302 AD2d 934 [2003];cf. People v Lococo, 92 NY2d 825, 827 [1998]; People v Hidalgo, 91 NY2d 733,737 [1998]), and there was no specific sentence promise at the time of the waiver (cf. People v Semple, 23 AD3d1058, 1059 [2005], lv denied 6 NY3d 852 [2006]). Nevertheless, on the merits, weconclude that the sentence is not unduly harsh or severe. Present—Scudder, P.J., Smith,Centra, Sconiers and Martoche, JJ.