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

446
KA 12-02202
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, LINDLEY, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JACOB E. WARE, III, DEFENDANT-APPELLANT.


DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (JOSEPH G. FRAZIER OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (LAURA T. BITTNER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Niagara County Court (Sara S.
Farkas, J.), rendered July 12, 2012. The judgment convicted
defendant, upon a jury verdict, of robbery in the second degree.

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

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of robbery in the second degree (Penal Law §
160.10 [1]). In a separate indictment, defendant was charged with
burglary in the second degree (Penal Law § 140.25 [2]) and grand
larceny in the fourth degree (§ 155.30) in connection with an
unrelated incident. Prior to sentencing on the robbery conviction,
defendant pleaded guilty to burglary in the second degree in
satisfaction of the separate indictment on the “very specific
condition” that he waive his right to appeal that conviction and,
further, that he waive his right to appeal his robbery conviction. In
exchange, the People agreed not to seek a persistent felony offender
adjudication in either case, and County Court promised to sentence
defendant to concurrent terms of incarceration.

     Contrary to the contention of defendant, we conclude that the
record establishes that he knowingly, intelligently and voluntarily
waived his right to appeal the robbery conviction (see People v
Colucci, 94 AD3d 1418, 1419, lv denied 19 NY3d 959; see generally
People v Lopez, 6 NY3d 248, 256). Defendant’s contention that his
waiver of the right to appeal was coerced is belied by the record (see
People v Hayes, 71 AD3d 1187, 1188, lv denied 15 NY3d 852,
reconsideration denied 15 NY3d 921). Further, the fact that defendant
waived his right to appeal in exchange for favorable sentencing terms
and the People’s withdrawal of their persistent felony offender
application does not render the waiver invalid (see People v Thacker,
                                 -2-                           446
                                                         KA 12-02202

47 AD3d 423, 423, lv denied 10 NY3d 817; People v Greene, 7 AD3d 923,
923, lv denied 3 NY3d 659; see generally People v Gast, 114 AD3d 1270,
1270-1271).

     Defendant’s contentions that, during the robbery trial, the court
erred in refusing to admit his codefendant’s out-of-court statement as
a declaration against penal interest, and that the court should have
provided a missing witness charge, are encompassed by his valid waiver
of the right to appeal (see generally Lopez, 6 NY3d at 255; People v
Muniz, 91 NY2d 570, 574; People v Mercer, 81 AD3d 1159, 1160, lv
denied 19 NY3d 999).

     Finally, although defendant’s waiver of the right to appeal does
not encompass his challenge to the severity of the sentence (see
People v Maracle, 19 NY3d 925, 927; People v Milon, 114 AD3d 1130,
1131; People v Peterson, 111 AD3d 1412, 1412), we nevertheless
conclude that the sentence is not unduly harsh or severe.




Entered:   June 13, 2014                        Frances E. Cafarell
                                                Clerk of the Court
