Summary
In Brown, we held that the plea court's "single reference to defendant's right to appeal [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" (id. at 860 [emphasis added and internal quotation marks omitted]).
Summary of this case from People v. ThomasOpinion
840 KA 01-01488
July 3, 2002.
Appeal from a judgment of Monroe County Court (Maloy, J.), entered August 17, 2000, convicting defendant upon his plea of guilty of grand larceny in the first degree.
EDWARD J. NOWAK, PUBLIC DEFENDER, ROCHESTER (TIMOTHY P. DONAHER OF COUNSEL), FOR DEFENDANT-APPELLANT.
HOWARD R. RELIN, DISTRICT ATTORNEY, ROCHESTER (AMY I. MOLLOY OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Before: PINE, J.P., HURLBUTT, SCUDDER, KEHOE, AND GORSKI, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
We agree with defendant that the record establishes that his waiver of the right to appeal is invalid because it was not knowing, voluntary and intelligent. During the plea colloquy, County Court stated, "And you're waiving your right to appeal on this matter," and defendant responded, "Yes." That single reference to defendant's right to appeal is 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. Kemp, 255 A.D.2d 397, 397; see People v. Callahan, 80 N.Y.2d 273, 283; cf. People v. Torres, 236 A.D.2d 642, lv denied 89 N.Y.2d 1041; People v. Coleman [appeal No. 1], 219 A.D.2d 827). Contrary to defendant's contention on appeal, however, we conclude that the sentence is neither unduly harsh nor severe.