People v McGee

People v Mcgee 2014 NY Slip Op 06748 Decided on October 3, 2014 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 3, 2014 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: SMITH, J.P., PERADOTTO, VALENTINO, WHALEN, AND DEJOSEPH, JJ.
1022 KA 13-00202

[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

v

ANTONIO MCGEE, DEFENDANT-APPELLANT.

Appeal from a judgment of the Supreme Court, Erie County (Deborah A. Haendiges, J.), rendered January 9, 2013. The judgment convicted defendant, upon his plea of guilty, of attempted burglary in the second degree.

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. SMALL OF COUNSEL), FOR RESPONDENT.

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 attempted burglary in the second degree (Penal Law §§ 110.00, 140.25 [2]), defendant contends that he did not validly waive his right to appeal, and he also challenges the severity of the sentence. We agree with defendant that his waiver of the right to appeal is not valid because Supreme Court made only a minimal inquiry that 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 AD2d 860, 860, lv denied 98 NY2d 767; see also People v Lopez, 6 NY3d 248, 256). We nevertheless conclude that the sentence is not unduly harsh or severe.

Entered: October 3, 2014

Frances E. Cafarell

Clerk of the Court