*1 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department 1201

KA 13-02192

PRESENT: SCUDDER, P.J., SMITH, CENTRA, WHALEN, AND DEJOSEPH, JJ. THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

V MEMORANDUM AND ORDER DAMON J. ERVING, DEFENDANT-APPELLANT.

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. LOWRY OF COUNSEL), FOR RESPONDENT. Appeal from a judgment of the Erie County Court (Sheila A.

DiTullio, J.), rendered October 15, 2013. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a weapon 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]). Contrary to defendant’s contention, the record establishes that his waiver of the right to appeal was knowing, voluntary and intelligent, and it thus encompasses his challenge to the severity of the sentence ( see People v Lopez , 6 NY3d 248, 256). We note, however, that the certificate of conviction erroneously states that defendant was convicted of violating section 265.03 (2), and it must therefore be corrected to reflect that defendant was convicted of violating section 265.03 (3) ( see People v Saxton , 32 AD3d 1286, 1286-1287).

Entered: November 13, 2015 Frances E. Cafarell

Clerk of the Court