THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. ANTHONY BOGAN SR DEFENDANT APPELLANT (2015)

Supreme Court, Appellate Division, Fourth Department.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. ANTHONY BOGAN, SR., DEFENDANT–APPELLANT.

KA 14–00412

Decided: January 02, 2015

PRESENT: SMITH, J.P., PERADOTTO, CARNI, VALENTINO, AND DEJOSEPH, JJ.

DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (JOSEPH G. FRAZIER OF COUNSEL), FOR DEFENDANT–APPELLANT. MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (LAURA T. BITTNER OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

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 criminal possession of a weapon in the second degree (Penal Law §§ 110.00, 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 waiver does not encompass defendant's challenge to the severity of the sentence because County Court failed to explain the sentencing parameters to defendant prior to obtaining the waiver (see People v. Kemp, 112 AD3d 1376, 1377). Nevertheless, on the merits, we conclude that the sentence is not unduly harsh or severe.

Frances E. Cafarell

Clerk of the Court

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