Opinion
02-06-2015
The PEOPLE of the State of New York, Respondent, v. Harold R. HUNT, Jr., also Known as Rob Hunt, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Nicholas P. DiFonzo of Counsel), for Defendant–Appellant. Lori Pettit Rieman, District Attorney, Little Valley (Kelly M. Balcom of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Nicholas P. DiFonzo of Counsel), for Defendant–Appellant.
Lori Pettit Rieman, District Attorney, Little Valley (Kelly M. Balcom of Counsel), for Respondent.
Opinion
MEMORANDUM:On appeal from a judgment convicting him upon his plea of guilty of, inter alia, criminal sexual act in the first degree (Penal Law § 130.50[4] ), defendant contends that the waiver of the right to appeal is not valid and challenges the severity of the sentence. We agree with defendant that the waiver of the right to appeal is invalid because the perfunctory inquiry made by County Court 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 A.D.2d 860, 860, 745 N.Y.S.2d 368, lv. denied 98 N.Y.2d 767, 752 N.Y.S.2d 7, 781 N.E.2d 919 ; see People v. Hamilton, 49 A.D.3d 1163, 1164, 856 N.Y.S.2d 375 ). Indeed, on this record we cannot determine “whether the court ensured ‘that the defendant understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty’ ” (People v. Johnson, 109 A.D.3d 1191, 1191, 971 N.Y.S.2d 723, lv. denied 22 N.Y.3d 997, 981 N.Y.S.2d 2, 3 N.E.3d 1170 ). We nevertheless conclude that the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.SMITH, J.P., FAHEY, CARNI, VALENTINO, and WHALEN, JJ., concur.