Opinion
No. KA 05-02655.
March 16, 2007.
Appeal from a judgment of the Erie County Court (Sharon M. Lovallo, A.J.), rendered September 9, 2005. The judgment convicted defendant, upon her plea of guilty, of attempted assault in the second degree.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (BARBARA J. DAVIES OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (J. MICHAEL MARION OF COUNSEL), FOR RESPONDENT.
Present — Hurlbutt, J.P., Martoche, Lunn, Peradotto and Green, JJ.
It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting her upon her plea of guilty of attempted assault in the second degree (Penal Law §§ 110.00, 120.05). As the People correctly concede, defendant's waiver of the right to appeal was not knowingly and intelligently entered. County Court inaccurately implied during the plea colloquy that defendant's right to appeal was forfeited by the entry of the guilty plea and, "[w]hen a . . . court inaccurately employs the language of forfeiture in a situation of waiver, it has mischaracterized the nature of the right a defendant [is] being asked to cede" ( People v Lopez, 6 NY3d 248, 257). Contrary to defendant's further contention, however, the sentence is not unduly harsh or severe.