PEOPLE v. (Appeal No. 2.) (2019)

MEMORANDUM AND ORDER

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

Memorandum:  In appeal No. 1, defendant appeals from a judgment convicting him upon his plea of guilty of attempted burglary in the third degree (Penal Law §§ 110.00, 140.20).  In appeal No. 2, he appeals from a judgment that, upon his admission that he violated the terms and conditions of probation, revoked the sentence of probation previously imposed upon his conviction of attempted burglary in the second degree (Penal Law §§ 110.00, 140.25[2] ) and sentenced him to a term of imprisonment.  We note at the outset that we dismiss the appeal from the judgment in appeal No. 1 because defendant raises no contentions with respect thereto (see People v. Scholz, 125 A.D.3d 1492, 1492, 3 N.Y.S.3d 860 [4th Dept. 2015], lv denied 25 N.Y.3d 1077, 12 N.Y.S.3d 628, 34 N.E.3d 379 [2015] ).

With respect to appeal No. 2, even assuming, arguendo, that defendant's waiver of the right to appeal during the underlying plea proceeding was valid, we conclude that the waiver does not encompass his challenge to the severity of the sentence imposed following his violation of probation (see People v. Giuliano, 151 A.D.3d 1958, 1959, 54 N.Y.S.3d 904 [4th Dept. 2017], lv denied 30 N.Y.3d 949, 67 N.Y.S.3d 133, 89 N.E.3d 523 [2017];  People v. Tedesco, 143 A.D.3d 1279, 1279, 38 N.Y.S.3d 499 [4th Dept. 2016], lv denied 28 N.Y.3d 1075, 47 N.Y.S.3d 234, 69 N.E.3d 1030 [2016] ).  Moreover, defendant's purported waiver of the right to appeal at the proceeding in which he admitted that he violated the terms of his probation is invalid inasmuch as County Court “failed to engage him in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice” (People v. Maloney, 140 A.D.3d 1782, 1783, 32 N.Y.S.3d 410 [4th Dept. 2016] [internal quotation marks omitted];  see People v. Brown, 296 A.D.2d 860, 860, 745 N.Y.S.2d 368 [4th Dept. 2002], lv denied 98 N.Y.2d 767, 752 N.Y.S.2d 7, 781 N.E.2d 919 [2002];  see generally People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ).  We further conclude, however, that the sentence imposed upon defendant's violation of probation is not unduly harsh or severe.