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

358
KA 13-01938
PRESENT: CENTRA, J.P., CARNI, DEJOSEPH, CURRAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

ERIC L. RICHARDSON, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (TIMOTHY P. MURPHY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Ronald
H. Tills, A.J.), rendered December 23, 2005. The judgment convicted
defendant, upon his plea of guilty, of burglary in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: In appeal No. 1, defendant appeals from a judgment
convicting him upon his plea of guilty of burglary in the second
degree (Penal Law § 140.25 [2]), and in appeal No. 2, he appeals from
a judgment convicting him upon his plea of guilty of a separate charge
of burglary in the second degree (§ 140.25 [2]). Contrary to the
contention of defendant in both appeals, his waiver of the right to
appeal was knowingly, voluntarily and intelligently entered (see
generally People v Lopez, 6 NY3d 248, 256). We conclude, however,
that the valid waiver of the right to appeal does not encompass the
challenge to the severity of the sentence in each appeal inasmuch as
Supreme Court failed to advise defendant “that he was also waiving his
right to appeal the harshness of his sentence” (People v Pimentel, 108
AD3d 861, 862, lv denied 21 NY3d 1076; see People v Peterson, 111 AD3d
1412, 1412). Nevertheless, on the merits, we conclude that the
sentence in each appeal is not unduly harsh or severe.




Entered:    April 29, 2016                         Frances E. Cafarell
                                                   Clerk of the Court
