THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. ANTONIO MCGEE DEFENDANT APPELLANT (2014)

Supreme Court, Appellate Division, Fourth Department, New York.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. ANTONIO MCGEE, DEFENDANT–APPELLANT.

KA 13–00202

Decided: October 03, 2014

PRESENT: SMITH, J.P., PERADOTTO, VALENTINO, WHALEN, AND DEJOSEPH, JJ.

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF COUNSEL), FOR DEFENDANT–APPELLANT. FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. SMALL OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

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 attempted burglary in the second degree (Penal Law §§ 110.00, 140.25 [2] ), defendant contends that he did not validly waive his right to appeal, and he also challenges the severity of the sentence. We agree with defendant that his waiver of the right to appeal is not valid because Supreme Court made only a minimal inquiry that was “insufficient to establish that the court ‘engage[d] the defendant in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice’ “ (People v. Brown, 296 A.D.2d 860, 860, lv denied 98 N.Y.2d 767; see also People v. Lopez, 6 NY3d 248, 256). We nevertheless conclude that the sentence is not unduly harsh or severe.

Frances E. Cafarell

Clerk of the Court

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