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

1328
KA 13-01145
PRESENT: CENTRA, J.P., FAHEY, VALENTINO, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

ROBERT LEISER, JR., ALSO KNOWN AS ROBERT P.
LEISER, JR., ALSO KNOWN AS ROBERT P. LEISER, II,
ALSO KNOWN AS ROBERT P. LEISER, ALSO KNOWN AS
ROBERT LEISER, 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 June 12, 2013. The judgment convicted
defendant, upon his plea of guilty, of attempted assault in the second
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 attempted assault in the second degree (Penal Law §§
110.00, 120.05 [2]), 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 NY3d 248, 256), we conclude that the valid waiver of the
right to appeal does not encompass the challenge to the severity of
the sentence because County Court did not advise defendant, at the
time of his plea, of the potential term of incarceration that he would
face if he violated the terms of his release under supervision (see
People v Eron, 79 AD3d 1774, 1775). Nevertheless, on the merits, we
conclude that the sentence is not unduly harsh or severe.




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