| People v Finster |
| 2016 NY Slip Op 00788 [136 AD3d 1279] |
| February 5, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vFrancis Finster, Appellant. |
Frank J. Nebush, Jr., Public Defender, Utica (David A. Cooke of counsel), fordefendant-appellant.
Francis Finster, defendant-appellant pro se.
Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), forrespondent.
Appeal from a judgment of the Oneida County Court (Michael L. Dwyer, J.),rendered January 20, 2011. The judgment convicted defendant, upon his plea of guilty,of course of sexual conduct against a child in the first degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty ofcourse of sexual conduct against a child in the first degree (Penal Law§ 130.75 [1] [b]), defendant contends that his waiver of the right to appealis invalid and that his sentence is unduly harsh and severe. We agree with defendant thatCounty Court's "single reference to defendant's right to appeal is insufficient to establishthat the court 'engage[d] the defendant in an adequate colloquy to ensure that the waiverof the right to appeal was a knowing and voluntary choice' " (People vBrown, 296 AD2d 860, 860 [2002], lv denied 98 NY2d 767 [2002]; see People v Spears, 106 AD3d1534, 1535 [2013], affd 24 NY3d 1057 [2014]). We reject the People'scontention that defendant signed a waiver of the right to appeal. To the contrary, therecord establishes that defendant signed a form notice indicating that he had the right toappeal (see 22 NYCRR 1022.11 [a]; see generally People v June, 242AD2d 977, 977 [1997]; People v Crum, 197 AD2d 936, 937 [1993]).Nevertheless, we reject defendant's challenge to the severity of the sentence.
Finally, we reject defendant's contention in his pro se supplemental brief that he didnot validly waive the right to be prosecuted by an indictment issued by a grand jury. Therecord reflects that "the written waiver—bearing the same date as the pleaallocution—was executed in counsel's presence, and . . . the waiverexpressly recites that it was 'executed in open court.' Under these circumstances,. . . defendant's waiver of indictment conformed to the requirements of CPL195.20" (People vSimmons, 110 AD3d 1371, 1372 [2013]). Present—Smith, J.P.,Peradotto, Lindley, DeJoseph and Scudder, JJ.