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

754
KA 12-00255
PRESENT: CENTRA, J.P., PERADOTTO, SCONIERS, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

DANIEL S. SMREK, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


CARR SAGLIMBEN LLP, OLEAN (JAY D. CARR OF COUNSEL), FOR
DEFENDANT-APPELLANT.

LORI P. RIEMAN, DISTRICT ATTORNEY, LITTLE VALLEY (KELLY M. BALCOM OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Cattaraugus County Court (Larry M.
Himelein, J.), rendered December 20, 2011. The judgment convicted
defendant, upon his plea of guilty, of driving while intoxicated, a
class D felony.

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

     Memorandum: In appeal No. 1, defendant appeals from a judgment
convicting him upon his plea of guilty of felony driving while
intoxicated (Vehicle and Traffic Law §§ 1192 [3]; 1193 [1] [c] [ii]),
and, in appeal No. 2, he appeals from a judgment convicting him upon
his plea of guilty of felony driving while intoxicated (§§ 1192 [3];
1193 [1] [c] [ii]), and aggravated unlicensed operation of a motor
vehicle in the second degree (§ 511 [2]). Contrary to defendant’s
contention in each appeal, the record establishes that he knowingly,
voluntarily and intelligently waived the right to appeal (see
generally People v Lopez, 6 NY3d 248, 256). Defendant’s valid waiver
forecloses any challenge by defendant to the severity of the sentence
in each appeal (see id. at 255; see generally People v Lococo, 92 NY2d
825, 827; People v Hidalgo, 91 NY2d 733, 737).




Entered:   June 14, 2013                           Frances E. Cafarell
                                                   Clerk of the Court
