BOGAN, SR., ANTHONY, PEOPLE v ( 2015 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1353
KA 14-00412
PRESENT: SMITH, J.P., PERADOTTO, CARNI, VALENTINO, AND DEJOSEPH, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
ANTHONY BOGAN, SR., DEFENDANT-APPELLANT.
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.
Appeal from a judgment of the Niagara County Court (Matthew J.
Murphy, III, J.), rendered February 5, 2014. The judgment convicted
defendant, upon his plea of guilty, of attempted 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 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.
Entered: January 2, 2015 Frances E. Cafarell
Clerk of the Court