The People of the State of New York, Respondent, v. Daryl Cooper, Also Known as Smoke, Appellant

The People of the State of New York, Respondent, v Daryl Cooper, Also Known as Smoke, Appellant. [721 NYS2d 187] [MAJORITY] —Judgment unanimously modified as a matter of discretion in the interest of justice and as modified affirmed in accordance with the following Memorandum: 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 AD2d 815; People v Wynn, 262 AD2d 1052). We agree with defendant that the sentence of concurrent indeterminate terms of incarceration of 21/2 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 IV2 to 3 years. (Appeal from Judgment of Erie County Court, Rogowski, J. — Criminal Possession Weapon, 3rd Degree.) Present — Pigott, Jr., P. J., Pine, Hayes, Kehoe and Burns, JJ.