Opinion
1334 KA 16–01163
12-21-2018
The PEOPLE of the State of New York, Respondent, v. Justin R. CRAMER, Defendant–Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (MICHAEL S. DEAL OF COUNSEL), FOR DEFENDANT–APPELLANT. LORI PETTIT RIEMAN, DISTRICT ATTORNEY, LITTLE VALLEY, FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (MICHAEL S. DEAL OF COUNSEL), FOR DEFENDANT–APPELLANT.
LORI PETTIT RIEMAN, DISTRICT ATTORNEY, LITTLE VALLEY, FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CENTRA, CARNI, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
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 attempted murder in the second degree ( Penal Law §§ 110.00, 125.25[1] ). 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] ... defendant in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice" ( People v. Carroll, 148 A.D.3d 1546, 1546, 49 N.Y.S.3d 808 [4th Dept. 2017], lv denied 29 N.Y.3d 1077, 64 N.Y.S.3d 166, 86 N.E.3d 253 [2017] [internal quotation marks omitted]; see People v. Lewis [Appeal No. 1], 161 A.D.3d 1588, 1588, 72 N.Y.S.3d 919 [4th Dept. 2018] ). Moreover, the colloquy concerning the waiver of the right to appeal, which was immediately preceded by a colloquy concerning the rights automatically forfeited by a guilty plea, conflated the right to appeal with the rights forfeited by a guilty plea (see People v. Cooper, 136 A.D.3d 1397, 1398, 24 N.Y.S.3d 481 [4th Dept. 2016], lv denied 27 N.Y.3d 1067, 38 N.Y.S.3d 838, 60 N.E.3d 1204 [2016] ). We nevertheless reject defendant's challenge to the severity of the sentence.