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

98
KA 13-00489
PRESENT: SMITH, J.P., CARNI, LINDLEY, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

JESSE BONNER, DEFENDANT-APPELLANT


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

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (JODI A. DANZIG OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (M.
William Boller, A.J.), rendered October 23, 2012. The judgment
convicted defendant, upon his plea of guilty, of criminal possession
of a controlled substance 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 criminal possession of a controlled substance in the
third degree (Penal Law § 220.16 [1]), defendant contends that his
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 the challenge
to the severity of the sentence because, although “it is evident that
defendant waived [his] right to appeal [his] conviction, there is no
indication in the record that defendant waived the right to appeal the
harshness of [his] sentence” (People v Maracle, 19 NY3d 925, 928; see
People v Pimentel, 108 AD3d 861, 862, lv denied 21 NY3d 706).
Nevertheless, on the merits, we conclude that the sentence is not
unduly harsh or severe.




Entered:   February 6, 2015                        Frances E. Cafarell
                                                   Clerk of the Court
