People v. Elioff

Appellate Division of the Supreme Court of New York

People v. Elioff

2017 NY Slip Op 5520, 152 A.D.3d 1158, 54 N.Y.S.3d 915

Appellate Division of the Supreme Court of the State of New York·Decided July 7, 2017·No. 243 KA 14-01655·Published·Cited by 1 cases

Opinion

Appeal from a judg *1159 ment of the Onondaga County Court (Thomas J. Miller, J.), rendered March 21, 2014. The judgment convicted defendant, upon his plea of guilty, of rape in the first 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 rape in the first degree (Penal Law § 130.35 [3]). We agree with defendant that his waiver of the right to appeal is invalid because “ ‘the minimal inquiry made by County Court [during the plea proceeding] was insufficient to establish that the court engage [d] . . . defendant in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice’ ” (People v Williams, 136 AD3d 1280, 1281 [2016], lv denied 27 NY3d 1141 [2016], lv denied 29 NY3d 954 [2017]). Nevertheless, contrary to defendant’s contention, we conclude that the sentence is not unduly harsh and severe.

Present — Smith, J.P., Garni, NeMoyer, Curran and Troutman, JJ.

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Appeal from a judg *1159 ment of the Onondaga County Court (Thomas J. Miller, J.), rendered March 21, 2014. The judgment convicted defendant, upon his plea of guilty, of rape in the first 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 rape in the first degree (Penal Law § 130.35 [3]). We agree with defendant that his waiver of the right to appeal is invalid because “ ‘the minimal inquiry made by County Court [during the plea proceeding] was insufficient to establish that the court engage [d] . . . defendant in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice’ ” (People v Williams, 136 AD3d 1280, 1281 [2016], lv denied 27 NY3d 1141 [2016], lv denied 29 NY3d 954 [2017]). Nevertheless, contrary to defendant’s contention, we conclude that the sentence is not unduly harsh and severe.

Present — Smith, J.P., Garni, NeMoyer, Curran and Troutman, JJ.

People v. Elioff, 2017 NY Slip Op 5520, 152 A.D.3d 1158, 54 N.Y.S.3d 915 (N.Y. Ct. App. 2017).

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