—[*1] The Legal Aid Bureau of Buffalo, Inc., Buffalo (Nicholas T. Texido of counsel), for defendant-appellant.

Frank J. Clark, District Attorney, Buffalo (J. Michael Marion of counsel), for respondent.

Appeal from a judgment of the Supreme Court, Erie County (Deborah A. Haendiges, J.), rendered August 3, 2007. The judgment convicted defendant, upon his plea of guilty, of assault 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 assault in the second degree (Penal Law § 120.05 [2]). We agree with defendant that his waiver of the right to appeal does not encompass his challenge to the severity of the sentence under the circumstance of this case (see generally People v Lopez, 6 NY3d 248, 256 [2006]), inasmuch as "defendant may have erroneously believed that the right to appeal is automatically extinguished upon entry of a guilty plea" (People v Moyett, 7 NY3d 892, 893 [2006]). We nevertheless conclude that the sentence is not unduly harsh or severe. Present—Scudder, P.J., Martoche, Centra, Fahey and Peradotto, JJ.