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

269
KA 12-01932
PRESENT: SMITH, J.P., FAHEY, LINDLEY, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

GABRIEL VANN, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALAN WILLIAMS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

LORI PETTIT RIEMAN, DISTRICT ATTORNEY, LITTLE VALLEY, FOR RESPONDENT.


     Appeal from a judgment of the Cattaraugus County Court (Larry M.
Himelein, J.), rendered July 16, 2012. The judgment convicted
defendant, upon his plea of guilty, of attempted criminal possession
of a controlled substance 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 attempted criminal possession of a controlled
substance in the third degree (Penal Law §§ 110.00, 220.16 [1]),
defendant contends that his waiver of the right to appeal is
unenforceable and that his sentence is unduly harsh and severe. Even
assuming, arguendo, that defendant’s waiver of the right to appeal is
unenforceable (see People v Williams, 46 AD3d 1424, 1425; People v
Whipple, 37 AD3d 1148, lv denied 8 NY3d 928), or that it does not
otherwise preclude his challenge to the severity of his sentence (see
People v Maracle, 19 NY3d 925, 928), we nevertheless conclude that the
negotiated sentence of a determinate term of one year plus one year of
postrelease supervision is not unduly harsh or severe. We note that
County Court initially placed defendant on interim probation, but
defendant was arrested on new charges prior to sentencing and failed
to comply with the terms and conditions of probation. We also note
that defendant was released from prison in April 2013 and is nearing
his maximum expiration date. We thus perceive no basis to exercise
our power to modify the sentence as a matter of discretion in the
interest of justice (see CPL 470.15 [6]).




Entered:   March 28, 2014                          Frances E. Cafarell
                                                   Clerk of the Court
