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

819
KA 14-01736
PRESENT: PERADOTTO, J.P., CARNI, DEJOSEPH, NEMOYER, AND CURRAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

RANDOLPH HARRIS, DEFENDANT-APPELLANT.
(APPEAL NO. 4.)


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

MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO (MATTHEW
B. POWERS OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Deborah
A. Haendiges, J.), entered July 2, 2014. The judgment convicted
defendant, upon his plea of guilty, of criminal contempt in the first
degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by directing that the sentence shall
run concurrently with the sentences imposed for the violation of
probation convictions under indictment Nos. 2013-01024I and 2013-1025I
and as modified the judgment is affirmed.

     Memorandum: In appeal No. 1, defendant appeals from a judgment
convicting him upon his plea of guilty of falsely reporting an
incident in the third degree (Penal Law § 240.50 [3] [a]). In appeal
No. 2, defendant appeals from a judgment revoking his sentence of
probation imposed upon his conviction, following his plea of guilty,
of criminal contempt in the second degree (§ 215.50 [3]), and
sentencing him to a term of imprisonment. In appeal No. 3, defendant
appeals from a judgment revoking his sentence of probation imposed
upon his conviction, following his plea of guilty, of criminal
contempt in the second degree (§ 215.50 [3]), and sentencing him to a
term of imprisonment. In appeal No. 4, defendant appeals from a
judgment convicting him upon his plea of guilty of criminal contempt
in the first degree (§ 215.51 [c]). Defendant pleaded guilty to the
respective crimes and violations of probation in one plea proceeding.

     Inasmuch as defendant has completed serving the sentences imposed
in appeal Nos. 1 through 3, his contention in each appeal that the
sentence is unduly harsh and severe has been rendered moot (see People
v Anderson, 66 AD3d 1431, 1431, lv denied 13 NY3d 905).
                                 -2-                          819
                                                        KA 14-01736

     We reject defendant’s contention in appeal No. 4 that his waiver
of the right to appeal is invalid. Supreme Court advised defendant of
the maximum sentences that could be imposed on each conviction (see
People v Lococo, 92 NY2d 825, 827), and the record, which includes an
oral and written waiver of the right to appeal, establishes that
defendant understood that he was waiving his right to appeal both the
conviction and the sentence in each appeal. We thus conclude that the
waiver of the right to appeal was knowing, intelligent, and voluntary
(see People v Lopez, 6 NY3d 248, 256), and that valid waiver
encompasses defendant’s contention concerning the severity of the
sentence imposed in appeal No. 4 (see id. at 256).

     Nonetheless, we conclude that the court erred in directing that
the definite sentences imposed in appeal Nos. 2 and 3 run
consecutively to the 2 to 4 year indeterminate sentence imposed in
appeal No. 4 (see Penal Law § 70.35; People v Morris, 101 AD3d 1631,
1632, lv denied 21 NY3d 1007, reconsideration denied 21 NY3d 1075).
“Although this issue was not raised before the [sentencing] court or
on appeal, we cannot allow an [illegal] sentence to stand” (People v
Price, 140 AD2d 927, 928). We therefore modify the judgment in appeal
No. 4 by directing that the indeterminate sentence imposed therein
shall run concurrently with the definite sentences imposed in appeal
Nos. 2 and 3.




Entered:   February 3, 2017                    Frances E. Cafarell
                                               Clerk of the Court
