People v. Carrasquillo

Frank H. Hiscock Legal Aid Society, Syracuse (Christine M. Cook of Counsel), for Defendant–Appellant.

William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.

Opinion

MEMORANDUM:

On appeal from a judgment convicting him upon his plea of guilty of burglary in the first degree (Penal Law § 140.30[3] ), defendant contends that the waiver of the right to appeal is not valid and challenges the severity of the sentence. We agree with defendant that the waiver of the right to appeal is invalid because “the minimal inquiry made by County Court was insufficient to establish that the court engage[d] the defendant in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice” ( People v. Jones, 107 A.D.3d 1589, 1589, 966 N.Y.S.2d 724, lv. denied 21 N.Y.3d 1075, 974 N.Y.S.2d 324, 997 N.E.2d 149 [internal quotation marks omitted]; see e.g. People v. Hassett, 119 A.D.3d 1443, 1443–1444, 988 N.Y.S.2d 831, lv. denied 24 N.Y.3d 961, 996 N.Y.S.2d 220, 20 N.E.3d 1000 ), and because “there is no basis upon

which to conclude that the court ensured ‘that the defendant understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty’ ” ( Jones, 107 A.D.3d at 1590, 966 N.Y.S.2d 724, quoting People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). We nevertheless conclude that the sentence is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

CENTRA, J.P., LINDLEY, SCONIERS, WHALEN, and DeJOSEPH, JJ., concur.