Opinion
91 KA 21-00199
02-03-2023
The PEOPLE of the State of New York, Respondent, v. Steven J. ORDWAY, Defendant-Appellant.
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA, THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALLISON V. MCMAHON OF COUNSEL), FOR DEFENDANT-APPELLANT. JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA, THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALLISON V. MCMAHON OF COUNSEL), FOR DEFENDANT-APPELLANT.
JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., LINDLEY, BANNISTER, MONTOUR, AND OGDEN, JJ.
MEMORANDUM AND ORDER
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 burglary in the third degree ( Penal Law § 140.20 ), defendant contends that his waiver of the right to appeal is invalid and that the sentence is unduly harsh and severe. As the People correctly concede, the purported waiver of the right to appeal is not enforceable inasmuch as County Court's minimal inquiry "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. Days , 150 A.D.3d 1622, 1624, 55 N.Y.S.3d 544 [4th Dept. 2017], lv denied 29 N.Y.3d 1125, 64 N.Y.S.3d 675, 86 N.E.3d 567 [2017] [internal quotation marks omitted]; see People v. McCoy , 107 A.D.3d 1454, 1454, 967 N.Y.S.2d 309 [4th Dept. 2013], lv denied 22 N.Y.3d 957, 977 N.Y.S.2d 188, 999 N.E.2d 553 [2013] ; see generally People v. Thomas , 34 N.Y.3d 545, 558, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied ––– U.S. ––––, 140 S.Ct. 2634, 206 L.Ed.2d 512 [2020] ).
Although we are thus not precluded from reviewing defendant's challenge to the severity of his sentence, we nevertheless conclude that the negotiated sentence is not unduly harsh or severe.