Opinion
619 KA 15–01509
05-04-2018
The PEOPLE of the State of New York, Respondent, v. Kellee L. LEWIS, Defendant–Appellant. (Appeal No. 1.)
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (MICHAEL S. DEAL OF COUNSEL), FOR DEFENDANT–APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (MICHAEL S. DEAL OF COUNSEL), FOR DEFENDANT–APPELLANT.
PRESENT: WHALEN, P.J., SMITH, CARNI, LINDLEY, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting her upon her plea of guilty of criminal possession of a controlled substance in the third degree ( Penal Law § 220.16[1] ) and, in appeal No. 2, she appeals from a judgment convicting her upon her plea of guilty of criminal sale of a controlled substance in the third degree (§ 220.39[1] ). The two pleas were entered in a single plea proceeding. In each appeal, defendant contends that her waiver of the right to appeal is not valid, and she challenges the severity of the sentence. Although 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 [4th Dept. 2002], lv denied 98 N.Y.2d 767, 752 N.Y.S.2d 7, 781 N.E.2d 919 [2002] ; see People v. Hamilton, 49 A.D.3d 1163, 1164, 856 N.Y.S.2d 375 [4th Dept. 2008] ), we nevertheless conclude that the sentence in each appeal is not unduly harsh or severe.