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THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. DAVID KITCHING, DEFENDANT–APPELLANT.
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 gang assault in the second degree (Penal Law § 120.06), defendant contends that the waiver of the right to appeal is not valid and challenges the severity of the sentence. Although we agree with defendant that the waiver of the right to appeal is invalid because the perfunctory inquiry made by County Court 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 People v. Jones, 107 AD3d 1589, 1589–1590, lv denied 21 NY3d 1075), we nevertheless conclude that the sentence is not unduly harsh or severe. “[T]he fact that ․ the codefendants received lesser sentences [is not germane because] the circumstances surrounding the sentencing of each were different” (People v. Purcell, 8 AD3d 821, 822; see People v. Prial, 118 AD3d 1498, 1499, lv denied 24 NY3d 963).
Frances E. Cafarell
Clerk of the Court
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Docket No: KA 12–01988
Decided: May 01, 2015
Court: Supreme Court, Appellate Division, Fourth Department.
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