           SUPREME COURT OF THE STATE OF NEW YORK
            Appellate Division, Fourth Judicial Department
4
KA 11-00932
PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

CHARLES M. WINTERS, 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 PANEPINTO OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Penny
M. Wolfgang, J.), rendered March 31, 2011. The judgment convicted
defendant, upon his plea of guilty, of driving while intoxicated as a
class D felony.

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

     Memorandum: On appeal from a judgment convicting him, upon his
guilty plea, of driving while intoxicated as a class D felony (Vehicle
and Traffic Law §§ 1192 [3]; 1193 [1] [c] [ii]), defendant contends
that his purported waiver of the right to appeal is unenforceable and
that his sentence of nine months in jail and five years’ probation is
unduly harsh and severe. Even assuming, arguendo, that defendant’s
waiver of the right to appeal is unenforceable, we perceive no basis
upon which to modify the sentence as a matter of discretion in the
interest of justice (see CPL 470.15 [6] [b]; People v Leggett, 101
AD3d 1694, 1694). Defendant has now been convicted of felony driving
while intoxicated four times, and prior sentences of probation have
not been successful in deterring him from drinking and driving. In
this case, defendant’s vehicle almost struck a police car, forcing the
officer to drive off the roadway. Under the circumstances, and
considering that defendant could have been sentenced to an
indeterminate term of imprisonment of two to six years, the agreed-
upon sentence should not be disturbed.




Entered:   February 8, 2013                        Frances E. Cafarell
                                                   Clerk of the Court
