| People v Graves |
| 2012 NY Slip Op 04563 [96 AD3d 1466] |
| June 8, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Julius Graves,Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Donna A. Milling of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Sheila A. DiTullio, J.), renderedDecember 13, 2010. The judgment convicted defendant, upon his plea of guilty, of criminalpossession of a weapon in the second degree, criminal possession of a weapon in the third degreeand trespass.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby vacating the sentence imposed for trespass under count three of the indictment and asmodified the judgment is affirmed, and the matter is remitted to Erie County Court forresentencing on that count of the indictment.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty ofcriminal possession of a weapon in the second degree (Penal Law § 265.03 [3]), criminalpossession of a weapon in the third degree (§ 265.02 [3]) and trespass (§ 140.05)."Despite defendant's contention to the contrary, the record 'establish[es] that [he] understood thatthe right to appeal is separate and distinct from those rights automatically forfeited upon a plea ofguilty' " (People v Lyons, 86 AD3d930, 930 [2011], lv denied 17 NY3d 954 [2011], quoting People v Lopez, 6 NY3d 248, 256[2006]; see People v Gleen, 73AD3d 1443, 1443-1444 [2010], lv denied 15 NY3d 773 [2010]). We conclude thatdefendant's waiver of the right to appeal was knowingly, intelligently and voluntarily entered(see Lopez, 6 NY3d at 256; Gleen, 73 AD3d at 1444). Contrary to defendant'sfurther contention, the valid waiver of the right to appeal encompasses his challenge to theseverity of the sentence inasmuch as County Court informed defendant of the sentencing promisebefore he waived the right to appeal (see Lopez, 6 NY3d at 255-256; People vLococo, 92 NY2d 825, 827 [1998]; People v Hidalgo, 91 NY2d 733, 737 [1998]).
As the People correctly concede, however, the sentence of a definite term of incarceration ofone year for the violation of trespass is illegal (see Penal Law § 70.15 [4]), anddefendant's challenge to the legality of the sentence is not foreclosed by the valid waiver of theright to appeal (see People v Seaberg, 74 NY2d 1, 9 [1989]). We therefore modify thejudgment by vacating the sentence imposed on count three of the indictment, and we remit thematter to County Court for resentencing on that count. Present—Scudder, P.J., Centra,Fahey, Peradotto and Sconiers, JJ.