SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1329
KA 13-00719
PRESENT: CENTRA, J.P., FAHEY, VALENTINO, WHALEN, AND DEJOSEPH, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
KAREEM HOWARD, DEFENDANT-APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KAREN RUSSO-MCLAUGHLIN
OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. SMALL OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Supreme Court, Erie County (M.
William Boller, A.J.), rendered November 13, 2012. The judgment
convicted defendant, upon his plea of guilty, of criminal possession
of a weapon in the second degree and criminal sale of a firearm in the
second degree.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: Defendant appeals 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]) and criminal sale of a firearm
in the second degree (§ 265.12 [2]). We agree with defendant that the
waiver of the right to appeal does not encompass his challenge to the
severity of the sentence. During the plea colloquy, Supreme Court
advised him that he was waiving his right to appeal from the
conviction only and failed to make any reference to the effect that
the waiver would have on any challenge to the severity of his sentence
(see People v Maracle, 19 NY3d 925, 928; People v Peterson, 111 AD3d
1412, 1412). Nevertheless, we conclude that the sentence is not
unduly harsh or severe.
As the People correctly concede, the presentence report has not
been redacted as the court ordered at sentencing, and therefore it
must be redacted to correct the oversight (see generally People v
Abuhamra, 107 AD3d 1630, 1631-1632, lv denied 22 NY3d 1038).
Entered: January 2, 2015 Frances E. Cafarell
Clerk of the Court