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

635
KA 13-01180
PRESENT: PERADOTTO, J.P., CARNI, CURRAN, TROUTMAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

THOMAS M. CULKIN, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SHERRY A. CHASE 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 (Deborah
A. Haendiges, J.), rendered February 14, 2013. The judgment convicted
defendant, upon his plea of guilty, of attempted burglary in the
second degree (three counts), forgery in the second degree and grand
larceny 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, inter alia, three counts of attempted burglary in
the second degree (Penal Law §§ 110.00, 140.25 [2]), 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 defendant’s challenge to the sentence inasmuch as
Supreme Court failed to advise defendant “that he was also waiving his
right to appeal any issue concerning the severity of the sentence”
(People v Peterson, 111 AD3d 1412, 1412). Nevertheless, on the
merits, we conclude that the sentence is not unduly harsh or severe.




Entered:    July 1, 2016                           Frances E. Cafarell
                                                   Clerk of the Court
