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

467
KA 13-00263
PRESENT: SMITH, J.P., PERADOTTO, CARNI, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

PAUL A. COOKHORNE, DEFENDANT-APPELLANT.


WILLIAMS, HEINL, MOODY & BUSCHMAN, P.C., AUBURN (RYAN JAMES MULDOON OF
COUNSEL), FOR DEFENDANT-APPELLANT.

JOSEPH V. CARDONE, DISTRICT ATTORNEY, ALBION (KATHERINE BOGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Orleans County Court (James P.
Punch, J.), rendered November 19, 2012. 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 [3]), defendant contends that the waiver of the right
to appeal is not valid and challenges the severity of the fine that
was imposed as part of his 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 fine because County
Court failed to advise defendant of the potential range of any fine
that could be imposed as part of his sentence (see generally People v
Newman, 21 AD3d 1343, 1343; People v McLean, 302 AD2d 934, 934), and
there was no specific promise as to the amount of a fine at the time
of the waiver (cf. People v Semple, 23 AD3d 1058, 1059, lv denied 6
NY3d 852). Nevertheless, on the merits, we reject defendant’s
challenge to the severity of the fine.




Entered:   May 2, 2014                             Frances E. Cafarell
                                                   Clerk of the Court
