People v. Hintz

103 A.D.3d 1196, 958 N.Y.S.2d 910

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 8, 2013
• Status: Published

Opinion

Appeal from a judgment of the Supreme Court, Erie County (Penny M. Wolfgang, J.), rendered March 29, 2011. The judgment convicted defendant, upon his plea of guilty, of attempted burglary in the second degree.

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

Memorandum: On appeal from a judgment convicting him upon his plea of guilty of attempted burglary in the second degree (Penal Law §§ 110.00, 140.25 [2]), 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 brief inquiry made by Supreme 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 Brown, 296 AD2d 860, 860 [2002], lv denied 98 NY2d 767 [2002]; see People v Hamilton, 49 AD3d 1163, 1164 [2008]). Nevertheless, we conclude that the sentence is not unduly harsh or severe. Present—Scudder, PJ., Centra, Garni, Lindley and Sconiers, JJ.