| People v Springstead |
| 2008 NY Slip Op 10279 [57 AD3d 1397] |
| December 31, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Chad L.Springstead, Appellant. (Appeal No. 1.) |
—[*1] Edward M. Sharkey, District Attorney, Little Valley (Kelly M. Balcom of counsel), forrespondent.
Appeal from a judgment of the Cattaraugus County Court (Larry M. Himelein, J.), renderedNovember 13, 2006. The judgment convicted defendant, upon his plea of guilty, of burglary in the thirddegree and petit larceny.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him, upon his pleaof guilty, of burglary in the third degree (Penal Law § 140.20) and petit larceny (§155.25). At the time of that conviction, defendant was on probation for a previous conviction of twocounts of burglary in the third degree. In appeal No. 2, defendant appeals from a judgment revoking thesentence of probation imposed upon the conviction of two counts of burglary in the third degree andsentencing him to a term of imprisonment, to run consecutively to the sentence imposed in appeal No.1. During the plea colloquy with respect to appeal No. 1 and the admission by defendant to theviolation of probation with respect to appeal No. 2, County Court asked defendant whether heunderstood that he was "waiving [his] right to appeal," and defendant responded, "[y]es, I am." Weagree with defendant in each appeal that his waiver of the right to appeal is invalid inasmuch as the courtfailed to " 'engage[ ] the defendant in an adequate colloquy to ensure that the waiver of the right toappeal was a knowing and voluntary choice' " (People v Brown, 296 AD2d 860 [2002], lvdenied 98 NY2d 767 [2002]; seePeople v Waggoner, 53 AD3d 1143, 1144 [2008]). Thus, defendant's challenges to theseverity of the sentence in each appeal are not encompassed by the invalid waiver of the right to appeal.Nevertheless, we conclude that the sentences are not unduly harsh or severe. Defendant failed topreserve for our review his contentions in appeal Nos. 1 and 2, respectively, that the plea was notknowingly, voluntarily and intelligently entered (see People v Johnson, 52 AD3d 1286 [2008], lv denied 11NY3d 738 [2008]; People v Aguayo, 37AD3d 1081 [2007], lv denied 8 NY3d 981 [2007]), and that his admission to theviolation of probation was not knowingly, voluntarily and intelligently entered (see People v Barra, 45 AD3d 1393[2007], lv denied 10 NY3d 761 [2008]). The contention of defendant in each appeal does notfall within the rare exception to the preservation requirement (see People v Lopez, 71 NY2d662, 666 [1988]). Present—Scudder, P.J., Martoche, Smith, Peradotto and Pine, JJ.