Opinion
2014-05-2
The PEOPLE of the State of New York, Respondent, v. Douglas McCULLARS, Defendant–Appellant.
Appeal from a judgment of the Onondaga County Court (Jeffrey R. Merrill, A.J.), rendered November 30, 2010. The judgment convicted defendant, upon his plea of guilty, of burglary in the third degree. Frank H. Hiscock Legal Aid Society, Syracuse (Piotr Banasiak of Counsel), for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.
Appeal from a judgment of the Onondaga County Court (Jeffrey R. Merrill, A.J.), rendered November 30, 2010. The judgment convicted defendant, upon his plea of guilty, of burglary in the third degree.
Frank H. Hiscock Legal Aid Society, Syracuse (Piotr Banasiak of Counsel), for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon his plea of guilty of burglary in the third degree (Penal Law § 140.20). We agree with defendant that the waiver of the right to appeal is invalid because “the minimal inquiry made by County 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. Box, 96 A.D.3d 1570, 1571, 946 N.Y.S.2d 525,lv. denied19 N.Y.3d 1024, 953 N.Y.S.2d 557, 978 N.E.2d 109 [internal quotation marks omitted]; see People v. Hamilton, 49 A.D.3d 1163, 1164, 856 N.Y.S.2d 375;People v. Brown, 296 A.D.2d 860, 860, 745 N.Y.S.2d 368,lv. denied98 N.Y.2d 767, 752 N.Y.S.2d 7, 781 N.E.2d 919). Indeed, on this record there is no basis upon which to conclude that the court ensured “that the defendant understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty” ( People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145). We nevertheless conclude that the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed. CENTRA, J.P., FAHEY, PERADOTTO, LINDLEY, and VALENTINO, JJ., concur.