THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. CORBIN KINSEY DEFENDANT APPELLANT (2018)

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, inter alia, grand larceny in the third degree (Penal Law § 155.35[1] ), defendant contends that the waiver of the right to appeal is not valid, and he challenges the severity of the sentence.  We agree with defendant that the waiver of the right to appeal is invalid because the perfunctory inquiry made by Supreme 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 [4th Dept 2002], lv denied 98 N.Y.2d 767 [2002];  see People v. Hamilton, 49 AD3d 1163, 1164 [4th Dept 2008] ).  Although defendant also signed a written waiver of the right to appeal, “[t]he court did not inquire of defendant whether he understood the written waiver or whether he had even read the waiver before signing it” (People v. Bradshaw, 18 NY3d 257, 262 [2011];  see People v. Sanford, 138 AD3d 1435, 1436 [4th Dept 2016] ).  Nevertheless, we conclude that the sentence is not unduly harsh or severe.

Mark W. Bennett

Clerk of the Court