People v. McGee

121 A.D.3d 1592, 992 N.Y.S.2d 837

Opinion

Appeal from a judgment of the Supreme Court, Erie County (Deborah A. Haendiges, J.), rendered January 9, 2013. 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 he did not validly waive his right to appeal, and he also challenges the severity of the sentence. We agree with defendant that his waiver of the right to appeal is not valid because Supreme Court made only a minimal inquiry that 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 also People v Lopez, 6 NY3d 248, 256 [2006]). We nevertheless conclude that the sentence is not unduly harsh or severe.

Present — Smith, J.P, Peradotto, Valentino, Whalen and DeJoseph, JJ.