People v Viera-Morales

People v Viera-morales 2015 NY Slip Op 02329 Decided on March 20, 2015 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 March 20, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, SCONIERS, AND DEJOSEPH, JJ.
295 KA 13-01211

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

v

KELVIN VIERA-MORALES, DEFENDANT-APPELLANT.

Appeal from a judgment of the Supreme Court, Erie County (M. William Boller, A.J.), rendered June 27, 2013. The judgment convicted defendant, upon his plea of guilty, of burglary in the first degree.

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (DEBORAH K. JESSEY OF COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY OF COUNSEL), FOR RESPONDENT.

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 burglary in the first degree (Penal Law § 140.30 [1]). We agree with defendant that his waiver of the right to appeal is invalid inasmuch as the perfunctory inquiry 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 AD2d 860, 860, lv denied 98 NY2d 767). We nevertheless conclude that the sentence is not unduly harsh or severe.

Entered: March 20, 2015

Frances E. Cafarell

Clerk of the Court