| People v Maloney |
| 2016 NY Slip Op 04860 [140 AD3d 1782] |
| June 17, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vBradley V. Maloney, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Timothy P. Murphy of counsel), fordefendant-appellant.
Michael J. Flaherty, Jr., Acting District Attorney, Buffalo (Ashley R. Lowry ofcounsel), for respondent.
Appeal from a judgment of the Erie County Court (Michael F. Pietruszka, J.), enteredMay 15, 2014. The judgment revoked defendant's sentence of probation and imposed asentence of imprisonment.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment that, upon his admission that heviolated the terms and conditions of probation, revoked the sentence of probationimposed upon his conviction of, inter alia, vehicular manslaughter in the first degree(Penal Law § 125.13 [6]) and vehicular assault in the first degree(§ 120.04 [6]), and sentenced him to terms of imprisonment. We agree withdefendant that his waiver of the right to appeal does not encompass the sentence imposedfollowing his admission that he violated the terms and conditions of his probationbecause County Court failed to engage him " 'in an adequate colloquy to ensurethat the waiver of the right to appeal was a knowing and voluntary choice' "(People v Brown, 296 AD2d 860, 860 [2002], lv denied 98 NY2d 767[2002]; see generally People vLopez, 6 NY3d 248, 256 [2006]). We nevertheless reject defendant's contentionthat the sentence imposed upon his violation of probation is unduly harsh and severe. Wenote that the certificate of conviction incorrectly states that defendant was convicted ofvehicular manslaughter in the second degree and must therefore be corrected to reflectthat he was convicted of vehicular manslaughter in the first degree (see People v Saxton, 32 AD3d1286, 1286-1287 [2006]). Present—Whalen, P.J., Carni, NeMoyer, Troutmanand Scudder, JJ.