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

5
KA 15-00421
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, AND LINDLEY, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

CURTIS MOSS, DEFENDANT-APPELLANT.


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

MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO (ASHLEY R.
LOWRY OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (M.
William Boller, A.J.), rendered December 3, 2014. The judgment
convicted defendant, upon his plea of guilty, of burglary in the first
degree and criminal possession of a weapon in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by vacating the sentence and as
modified the judgment is affirmed, and the matter is remitted to
Supreme Court, Erie County, for resentencing.

     Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of burglary in the first degree (Penal Law
§ 140.30 [1]) and criminal possession of a weapon in the second degree
(§ 265.03 [3]). We conclude that the waiver of the right to appeal
with respect to the conviction and the sentence is valid and
encompasses defendant’s challenge to the severity of the bargained-for
sentence (see People v Lopez, 6 NY3d 248, 255-256; cf. People v
Maracle, 19 NY3d 925, 928). Nevertheless, we conclude that the
sentence must be vacated because Supreme Court erred in sentencing
defendant as a second violent felony offender, and “we cannot allow an
illegal sentence to stand” (People v Terry, 138 AD3d 1484, 1485, lv
denied 27 NY3d 1156; see People v Fields, 79 AD3d 1448, 1449). The
predicate offense of criminal possession of a weapon in the third
degree under the subdivision of which defendant was convicted
(§ 265.02 [3]) is not a violent felony offense (see § 70.02 [1] [c]).
We therefore modify the judgment by vacating the sentence, and we
remit the matter to Supreme Court for resentencing (cf. Terry, 138
AD3d at 1485).


Entered:    February 3, 2017                       Frances E. Cafarell
                                                   Clerk of the Court
