People v. Brown

296 A.D.2d 860, 745 N.Y.S.2d 368, 2002 N.Y. App. Div. LEXIS 7237

Opinion

Appeal from a judgment of Monroe County Court (Maloy, J.), entered August 17, 2000, convicting defendant upon his plea of guilty of grand larceny in the first degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: We agree with defendant that the record establishes that his waiver of the right to appeal is invalid because it was not knowing, voluntary and intelligent. During the plea colloquy, County Court stated, “And you’re waiving your right to appeal on this matter,” and defendant responded, “Yes.” That single reference to defendant’s right to appeal is 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 Kemp, 255 AD2d 397, 397; see People v Callahan, 80 NY2d 273, 283; cf. People v Torres, 236 AD2d 642, lv denied 89 NY2d 1041; People v Coleman [appeal No. 1], 219 AD2d 827). Contrary to defendant’s contention on appeal, however, we conclude that the sentence is neither unduly harsh nor severe. Present — Pine, J.P., Hurlbutt, Scudder, Kehoe and Gorski, JJ.