| People v McCullars |
| 2014 NY Slip Op 03113 [117 AD3d 1480] |
| May 2, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vDouglas McCullars, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Piotr Banasiak of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel),for respondent.
Appeal from a judgment of the Onondaga County Court (Jeffrey R. Merrill, A.J.),rendered November 30, 2010. The judgment convicted defendant, upon his plea ofguilty, of burglary in the third degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea ofguilty of burglary in the third degree (Penal Law § 140.20). We agree withdefendant that the waiver of the right to appeal is invalid because "the minimal inquirymade by County Court was insufficient to establish that the court engage[d] thedefendant in an adequate colloquy to ensure that the waiver of the right to appeal was aknowing and voluntary choice" (People v Box, 96 AD3d 1570, 1571 [2012], lvdenied 19 NY3d 1024 [2012] [internal quotation marks omitted]; see People v Hamilton, 49AD3d 1163, 1164 [2008]; People v Brown, 296 AD2d 860, 860 [2002],lv denied 98 NY2d 767 [2002]). Indeed, on this record there is no basis uponwhich to conclude that the court ensured "that the defendant understood that the right toappeal is separate and distinct from those rights automatically forfeited upon a plea ofguilty" (People v Lopez, 6NY3d 248, 256 [2006]). We nevertheless conclude that the sentence is not undulyharsh or severe. Present—Centra, J.P., Fahey, Peradotto, Lindley and Valentino,JJ.