PEOPLE v. GONZALEZ SAEZ

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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Alexis GONZALEZ-SAEZ, Defendant-Appellant.

Decided: March 18, 2005

PRESENT:  PIGOTT, JR., P.J., GREEN, GORSKI, MARTOCHE, AND SMITH, JJ. The Legal Aid Bureau of Buffalo, Inc., Buffalo (Robert B. Hallborg, Jr., of Counsel), for Defendant-Appellant. Frank J. Clark, District Attorney, Buffalo (Don I. Dally of Counsel), for Plaintiff-Respondent.

Defendant appeals from a judgment convicting him upon a plea of guilty of robbery in the second degree (Penal Law § 160.10[2][b] ) and attempted robbery in the second degree (§§ 110.00, 160.10[2][a] ). We agree with defendant that the record of the plea colloquy fails to establish that his waiver of the right to appeal was knowing, voluntary and intelligent.   County Court's “single reference to defendant's right to appeal is 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, 745 N.Y.S.2d 368, lv. denied 98 N.Y.2d 767, 752 N.Y.S.2d 7, 781 N.E.2d 919, quoting People v. Kemp, 255 A.D.2d 397, 397, 681 N.Y.S.2d 41).   Contrary to defendant's contention, however, we conclude that the incarceration portion of the sentence is not unduly harsh or severe.   Defendant failed to preserve for our review his challenge to the restitution portion of his sentence (see People v. McCorkle, 298 A.D.2d 848, 848-849, 747 N.Y.S.2d 819, lv. denied 99 N.Y.2d 561, 754 N.Y.S.2d 213, 784 N.E.2d 86), and we decline to exercise our power to review that challenge as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).

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

MEMORANDUM: