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

845
KA 14-00514
PRESENT: SCUDDER, P.J., CARNI, LINDLEY, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

ANTONIO L. JAMES, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (NICHOLAS P. DIFONZO OF
COUNSEL), FOR DEFENDANT-APPELLANT.

LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (WILLIAM G. ZICKL OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Genesee County Court (Robert C.
Noonan, J.), rendered November 27, 2013. The judgment convicted
defendant, upon his plea of guilty, of grand larceny in the fourth
degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him, upon his
plea of guilty, of grand larceny in the fourth degree (Penal Law §
155.30 [1]), defendant contends that his waiver of the right to appeal
is unenforceable and that his sentence is unduly harsh and severe.
“Even assuming, arguendo, that defendant’s waiver of the right to
appeal is unenforceable . . . , or that it does not otherwise preclude
his challenge to the severity of his sentence” (People v Vann, 115
AD3d 1334, 1334), we nevertheless perceive no basis to modify the
sentence, an indeterminate term of imprisonment of 1a to 3 years, as
a matter of discretion in the interest of justice (see CPL 470.15 [6]
[b]). We note that, although defendant was only 22 years old at the
time of sentencing, he already had an extensive criminal record,
including four prior felonies, and he failed to complete three
separate terms of probation.




Entered:    July 2, 2015                           Frances E. Cafarell
                                                   Clerk of the Court
