THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. JOSEPH ELIOFF DEFENDANT APPELLANT (2017)

Supreme Court, Appellate Division, Fourth Department.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. JOSEPH ELIOFF, DEFENDANT–APPELLANT.

KA 14–01655

Decided: July 07, 2017

PRESENT: SMITH, J.P., CARNI, NEMOYER, CURRAN, AND TROUTMAN, JJ.

FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK OF COUNSEL), FOR DEFENDANT–APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of rape in the first degree (Penal Law

§ 130.35 [3] ). We agree with defendant that his waiver of the right to appeal is invalid because “ ‘the minimal inquiry made by County Court [during the plea proceeding] was insufficient to establish that the court engage[d] ․ defendant in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary

choice' “ (People v. Williams, 136 AD3d 1280, 1281, lv denied 27 NY3d 1141, reconsideration denied 29 NY3d 954). Nevertheless, contrary to defendant's contention, we conclude that the sentence is not unduly harsh and severe.

Frances E. Cafarell

Clerk of the Court

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