Opinion
04-29-2016
The PEOPLE of the State of New York, Respondent, v. Andre SMITH, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Barbara J. Davies of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of Counsel), for Respondent.
Appeal from a judgment of the Supreme Court, Erie County (Penny M. Wolfgang, J.), rendered March 26, 2014. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a weapon in the second degree.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Barbara J. Davies of Counsel), for Defendant–Appellant.
Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of Counsel), for Respondent.
Opinion
MEMORANDUM: On appeal from a judgment convicting him upon his plea of guilty of criminal possession of a weapon in the second degree (Penal Law § 265.03[3] ), defendant contends that the waiver of the right to appeal is not valid and 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 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ), 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 inquire on the record whether defendant understood that he was waiving the right to challenge the length of his sentence (see generally People v. Bradshaw, 18 N.Y.3d 257, 265, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; People v. Carno, 101 A.D.3d 1663, 1664, 955 N.Y.S.2d 786, lv. denied 20 N.Y.3d 1060, 962 N.Y.S.2d 611, 985 N.E.2d 921 ). Nevertheless, on the merits, we conclude that the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
CENTRA, J.P., PERADOTTO, CARNI, CURRAN, and TROUTMAN, JJ., concur.