| People v Tumolo |
| 2017 NY Slip Op 03325 [149 AD3d 1544] |
| April 28, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v Brian T.Tumolo, Appellant. |
Linda M. Campbell, Syracuse, for defendant-appellant.
Gregory S. Oakes, District Attorney, Oswego (Amy L. Hallenbeck of counsel), forrespondent.
Appeal from a judgment of the Oswego County Court (Donald E. Todd, J.), rendered August18, 2015. The judgment convicted defendant, upon his plea of guilty, of criminal sale of acontrolled substance in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of criminalsale of a controlled substance in the third degree (Penal Law § 220.39 [1]),defendant challenges the severity of his sentence. As a preliminary matter, we conclude that thewaiver of the right to appeal is invalid because the perfunctory inquiry made by County Courtwas "insufficient to establish that the court engage[d] the defendant in an adequate colloquy toensure that the waiver of the right to appeal was a knowing and voluntary choice" (People v Howington, 144 AD3d1651, 1652 [2016] [internal quotation marks omitted]; see People v Shaw, 133 AD3d 1312, 1313 [2015], lv denied26 NY3d 1150 [2016]). Nevertheless, we conclude that the sentence is not unduly harsh orsevere. We note, however, that the certificate of conviction incorrectly reflects that defendantwas sentenced to three years of postrelease supervision, and it must therefore be amended toreflect that he was sentenced to two years of postrelease supervision (see e.g. People v Saxton, 32 AD3d1286, 1286-1287 [2006]). Present—Whalen, P.J., Smith, Centra, Troutman andScudder, JJ.