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

194
KA 15-00203
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, CURRAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

JEREMY A. WEATHERBEE, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (TIMOTHY P. MURPHY 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 January 13, 2015. The judgment convicted
defendant, upon his plea of guilty, of driving while intoxicated, as a
class E felony, and aggravated unlicensed operation of a motor vehicle
in the third 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, inter alia, felony driving while intoxicated
(Vehicle and Traffic Law §§ 1192 [3]; 1193 [1] [c] [i] [A]), defendant
contends that his waiver of the right to appeal is invalid and does
not in any event encompass his challenge to the severity of the
sentence. We conclude that “ ‘[t]he written waiver of the right to
appeal, together with defendant’s responses during the plea
proceeding, establish that the waiver was voluntarily, knowingly, and
intelligently entered’ ” (People v Smith, 122 AD3d 1420, 1420, lv
denied 25 NY3d 1172; see People v Ramos, 7 NY3d 737, 738). Contrary
to defendant’s contention, “[a]ny nonwaivable issues purportedly
encompassed by the waiver ‘are excluded from the scope of the waiver
[and] the remainder of the waiver is valid and enforceable’ ” (People
v Neal, 56 AD3d 1211, 1211, lv denied 12 NY3d 761). Nonetheless, even
assuming, arguendo, that defendant’s challenge to the severity of his
sentence is not encompassed by his valid waiver of the right to appeal
(see e.g. People v Leiser, 124 AD3d 1349, 1350), we conclude that the
sentence is not unduly harsh or severe.



Entered:    February 10, 2017                      Frances E. Cafarell
                                                   Clerk of the Court
