Opinion
424 KA 16–02338
04-26-2019
The PEOPLE of the State of New York, Respondent, v. Cueshan ALLEN, Defendant–Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (ELIZABETH RIKER OF COUNSEL), FOR DEFENDANT–APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (ELIZABETH RIKER OF COUNSEL), FOR DEFENDANT–APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., DEJOSEPH, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDER
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 arson in the third degree ( Penal Law § 150.10[1] ). As defendant contends and the People correctly concede, defendant did not validly waive his right to appeal. Although the record establishes that he executed a written waiver of the right to appeal, Supreme Court did not engage defendant in any colloquy regarding the waiver to ensure that it was made knowingly, voluntarily, and intelligently (see People v. Testerman, 149 A.D.3d 1559, 1559, 52 N.Y.S.3d 789 [4th Dept. 2017] ; People v. Carno, 101 A.D.3d 1663, 1664, 955 N.Y.S.2d 786 [4th Dept. 2012], lv denied 20 N.Y.3d 1060, 962 N.Y.S.2d 611, 985 N.E.2d 921 [2013] ). Nevertheless, we conclude that the sentence is not unduly harsh or severe.