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

1344
KA 12-02177
PRESENT: SMITH, J.P., FAHEY, LINDLEY, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JAMES P. KEMP, DEFENDANT-APPELLANT.


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

LORI PETTIT RIEMAN, DISTRICT ATTORNEY, LITTLE VALLEY (KELLY M. BALCOM
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Cattaraugus County Court (Larry M.
Himelein, J.), rendered September 4, 2012. The judgment convicted
defendant, upon his plea of guilty, of attempted rape 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 attempted rape in the second degree (Penal Law §§
110.00, 130.30 [1]), defendant contends that the sentence imposed, a
determinate term of incarceration of two years plus five years’
postrelease supervision, is unduly harsh and severe. We agree with
defendant that his waiver of the right to appeal does not preclude him
from challenging the severity of his sentence, inasmuch as “the record
establishes that defendant waived his right to appeal before County
Court advised him of the potential periods of imprisonment that could
be imposed” (People v Mingo, 38 AD3d 1270, 1271; see People v Adams,
94 AD3d 1428, 1429, lv denied 19 NY3d 970). Nevertheless, we perceive
no basis to exercise our power to modify his sentence as a matter of
discretion in the interest of justice (see CPL 470.15 [6]).

     Although defendant was only 19 years old when he was sentenced,
he already had a criminal record, along with a youthful offender
adjudication and extensive contact with the criminal justice system as
a juvenile. We also note that defendant was previously sentenced to
probation in connection with the youthful offender adjudication but
failed to comply with its terms and conditions, thus resulting in his
being resentenced to incarceration. Finally, we note that the
certificate of conviction incorrectly reflects that defendant was
sentenced to a two-year period of postrelease supervision and
therefore must be amended to correct that error (see People v Saxton,
                               -2-                 1344
                                              KA 12-02177

32 AD3d 1286, 1286-1287).




Entered:   December 27, 2013         Frances E. Cafarell
                                     Clerk of the Court
