| People v Cieslewicz |
| 2007 NY Slip Op 08569 [45 AD3d 1344] |
| November 9, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v EdwardCieslewicz, Appellant. |
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Appeal from a judgment of the Erie County Court (Michael L. D'Amico, J.), rendered July13, 2006. The judgment convicted defendant, upon his plea of guilty, of robbery in the seconddegree (two counts) and burglary in the third degree.
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously modified on the law by reversing that part convicting defendant of burglary in thethird degree and dismissing count two of the superior court information and as modified thejudgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty oftwo counts of robbery in the second degree (Penal Law § 160.10 [2] [a]) and one count ofburglary in the third degree (§ 140.20). The People do not dispute the fact that the superiorcourt information (SCI) was jurisdictionally defective with respect to the charge of burglary inthe third degree, and we therefore modify the judgment accordingly. Defendant was not held foraction of a grand jury on that charge inasmuch as "it was not an offense charged in the felonycomplaint or a lesser-included offense of an offense charged in the felony complaint" (People v Edwards, 39 AD3d 875,876 [2007]; see CPL 195.20; People v Goforth, 36 AD3d 1202, 1203 [2007], lv denied 8NY3d 946 [2007]). We reject the People's contention that defendant's challenge to the SCI is notproperly before us. Preservation of that challenge is not required, and the challenge survivesdefendant's plea of guilty (see Edwards, 39 AD3d at 876-877; People v McClain, 24 AD3d 1271,1272 [2005]). Although defendant's challenge to the SCI also would survive a valid waiver of theright to appeal (see Edwards, 39 AD3d at 876-877), we agree with defendant that hiswaiver of the right to appeal is invalid. Based upon County Court's statements during the pleacolloquy, "defendant may have erroneously believed that the right to appeal is automaticallyextinguished upon entry of a guilty plea" (People v Moyett, 7 NY3d 892, 893 [2006]; see People vBillingslea, 6 NY3d 248, 257). Defendant's challenge to the severity of the sentence thus isproperly before us, but we conclude that it lacks merit. Present—Scudder, P.J., Hurlbutt,Fahey, Green and Pine, JJ.