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

195
KA 15-00969
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, CURRAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

KENNETH A. MARKLE, 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 April 29, 2014. The judgment convicted
defendant, upon his plea of guilty, of assault in the second 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 assault in the second degree (Penal Law § 120.05
[2]), defendant contends that the waiver of the right to appeal is not
valid and challenges the severity of the sentence. Although we agree
with defendant that the waiver of the right to appeal is invalid
inasmuch as he pleaded guilty as charged in the superior court
information without a sentencing commitment (see People v Collins, 129
AD3d 1676, 1676, lv denied 26 NY3d 1038), we nevertheless conclude
that the sentence is not unduly harsh or severe.




Entered:    February 10, 2017                      Frances E. Cafarell
                                                   Clerk of the Court
