PEOPLE v. COOPER (2001)

Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. Daryl COOPER, a/k/a Smoke, Defendant-Appellant.

Decided: February 07, 2001

PRESENT: PIGOTT, JR., P.J., PINE, HAYES, KEHOE and BURNS, JJ.

Mary Good, Buffalo, for defendant-appellant. Joseph Kilbridge, Buffalo, for plaintiff-respondent.

Defendant appeals from a judgment convicting him upon his plea of guilty of three counts of criminal possession of a weapon in the third degree (Penal Law § 265.02[4] ). Defendant used an unlicensed firearm to thwart a robbery, killing an armed assailant and wounding two accomplices. Because County Court did not advise defendant of the potential term of incarceration, the waiver by defendant of the right to appeal does not encompass his challenge to the severity of his sentence (see, People v. Cormack, 269 A.D.2d 815, 703 N.Y.S.2d 808; People v. Wynn, 262 A.D.2d 1052, 691 N.Y.S.2d 807). We agree with defendant that the sentence of concurrent indeterminate terms of incarceration of 2 1/212 to 5 years is unduly harsh and severe. We therefore modify the judgment as a matter of discretion in the interest of justice by reducing the sentence to terms of incarceration of 1 1/212 to 3 years.

Judgment unanimously modified as a matter of discretion in the interest of justice and as modified affirmed.

MEMORANDUM:

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