Opinion
02-03-2017
The PEOPLE of the State of New York, Respondent, v. Curtis MOSS, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Robert L. Kemp of Counsel), for Defendant–Appellant. Michael J. Flaherty, Jr., Acting District Attorney, Buffalo (Ashley R. Lowry of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Robert L. Kemp of Counsel), for Defendant–Appellant.
Michael J. Flaherty, Jr., Acting District Attorney, Buffalo (Ashley R. Lowry of Counsel), for Respondent.
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, AND LINDLEY, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon his plea of guilty of burglary in the first degree (Penal Law § 140.30[1] ) and criminal possession of a weapon in the second degree (§ 265.03[3] ). We conclude that the waiver of the right to appeal with respect to the conviction and the sentence is valid and encompasses defendant's challenge to the severity of the bargained-for sentence (see People v. Lopez, 6 N.Y.3d 248, 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; cf. People v. Maracle, 19 N.Y.3d 925, 928, 950 N.Y.S.2d 498, 973 N.E.2d 1272 ). Nevertheless, we conclude that the sentence must be vacated because Supreme Court erred in sentencing defendant as a second violent felony offender, and "we cannot allow an illegal sentence to stand" (People v. Terry, 138 A.D.3d 1484, 1485, 30 N.Y.S.3d 464, lv. denied 27 N.Y.3d 1156, 39 N.Y.S.3d 389, 62 N.E.3d 129 ; see People v. Fields, 79 A.D.3d 1448, 1449, 917 N.Y.S.2d 323 ). The predicate offense of criminal possession of a weapon in the third degree under the subdivision of which defendant was convicted (§ 265.02[3] ) is not a violent felony offense (see § 70.02[1][c] ). We therefore modify the judgment by vacating the sentence, and we remit the matter to Supreme Court for resentencing (cf. Terry, 138 A.D.3d at 1485, 30 N.Y.S.3d 464 ).
It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by vacating the sentence and as modified the judgment is affirmed, and the matter is remitted to Supreme Court, Erie County, for resentencing.