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

1201
KA 13-02192
PRESENT: SCUDDER, P.J., SMITH, CENTRA, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

DAMON J. ERVING, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. LOWRY OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Sheila A.
DiTullio, J.), rendered October 15, 2013. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of a weapon
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 his plea of guilty of criminal possession of a weapon in the
second degree (Penal Law § 265.03 [3]). Contrary to defendant’s
contention, the record establishes that his waiver of the right to
appeal was knowing, voluntary and intelligent, and it thus encompasses
his challenge to the severity of the sentence (see People v Lopez, 6
NY3d 248, 256). We note, however, that the certificate of conviction
erroneously states that defendant was convicted of violating section
265.03 (2), and it must therefore be corrected to reflect that
defendant was convicted of violating section 265.03 (3) (see People v
Saxton, 32 AD3d 1286, 1286-1287).




Entered:    November 13, 2015                      Frances E. Cafarell
                                                   Clerk of the Court
