        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

722
KA 11-00153
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, PERADOTTO, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JULIUS GRAVES, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (MICHAEL C. WALSH OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DONNA A. MILLING OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Sheila A.
DiTullio, J.), rendered December 13, 2010. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of a weapon
in the second degree, criminal possession of a weapon in the third
degree and trespass.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by vacating the sentence imposed for
trespass under count three of the indictment and as modified the
judgment is affirmed, and the matter is remitted to Erie County Court
for resentencing on that count of the indictment.

     Memorandum: Defendant appeals 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]), criminal possession of a
weapon in the third degree (§ 265.02 [3]) and trespass (§ 140.05).
“Despite defendant’s contention to the contrary, the record
‘establish[es] that [he] understood that the right to appeal is
separate and distinct from those rights automatically forfeited upon a
plea of guilty’ ” (People v Lyons, 86 AD3d 930, 930, lv denied 17 NY3d
954, quoting People v Lopez, 6 NY3d 248, 256; see People v Gleen, 73
AD3d 1443, 1443-1444, lv denied 15 NY3d 773). We conclude that
defendant’s waiver of the right to appeal was knowingly, intelligently
and voluntarily entered (see Lopez, 6 NY3d at 256; Gleen, 73 AD3d at
1444). Contrary to defendant’s further contention, the valid waiver
of the right to appeal encompasses his challenge to the severity of
the sentence inasmuch as County Court informed defendant of the
sentencing promise before he waived the right to appeal (see Lopez, 6
NY3d at 255-256; People v Lococo, 92 NY2d 825, 827; People v Hidalgo,
91 NY2d 733, 737).

     As the People correctly concede, however, the sentence of a
                                 -2-                          722
                                                        KA 11-00153

definite term of incarceration of one year for the violation of
trespass is illegal (see Penal Law § 70.15 [4]), and defendant’s
challenge to the legality of the sentence is not foreclosed by the
valid waiver of the right to appeal (see People v Seaberg, 74 NY2d 1,
9). We therefore modify the judgment by vacating the sentence imposed
on count three of the indictment, and we remit the matter to County
Court for resentencing on that count.




Entered:   June 8, 2012                        Frances E. Cafarell
                                               Clerk of the Court
