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

796
KA 11-02182
PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

LAMONT HINES, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (VINCENT F. GUGINO OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DONNA A. MILLING OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Deborah
A. Haendiges, J.), rendered August 23, 2011. The judgment convicted
defendant, upon his plea of guilty, of attempted murder in the second
degree (two counts).

     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 two counts of attempted murder in the second degree
(Penal Law §§ 110.00, 125.25 [1]), defendant contends that the waiver
of the right to appeal is not valid and challenges the severity of the
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 his challenge to the
severity of the sentence because the record establishes that defendant
waived his right to appeal before Supreme Court advised him of the
potential periods of imprisonment that could be imposed (see People v
Mingo, 38 AD3d 1270, 1271; see generally People v Lococo, 92 NY2d 825,
827). Nevertheless, on the merits, we conclude that the sentence is
not unduly harsh or severe.




Entered:   July 19, 2013                           Frances E. Cafarell
                                                   Clerk of the Court
