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

391
KA 14-00760
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, CURRAN, AND TROUTMAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

ANDRE SMITH, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (BARBARA J. DAVIES OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Penny
M. Wolfgang, J.), rendered March 26, 2014. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of a weapon
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 criminal possession of a weapon in the second degree
(Penal Law § 265.03 [3]), 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 the challenge to the
severity of the sentence because Supreme Court failed to inquire on
the record whether defendant understood that he was waiving the right
to challenge the length of his sentence (see generally People v
Bradshaw, 18 NY3d 257, 265; People v Carno, 101 AD3d 1663, 1664, lv
denied 20 NY3d 1060). Nevertheless, on the merits, we conclude that
the sentence is not unduly harsh or severe.




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