Opinion
1336 KA 16–01963
12-21-2018
The PEOPLE of the State of New York, Respondent, v. WESLEY B., Defendant–Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KRISTIN M. PREVE OF COUNSEL), FOR DEFENDANT–APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KRISTIN M. PREVE OF COUNSEL), FOR DEFENDANT–APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CENTRA, CARNI, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
Appeal from an adjudication of the Supreme Court, Erie County (Russell P. Buscaglia, A.J.), rendered October 4, 2016. Defendant was adjudicated a youthful offender upon his plea of guilty of attempted robbery in the first degree.
It is hereby ORDERED that the adjudication so appealed from is unanimously affirmed.
Memorandum: On appeal from a youthful offender adjudication based upon his plea of guilty of attempted robbery in the first degree ( Penal Law §§ 110.00, 160.15[2] ), defendant contends that his waiver of the right to appeal is invalid. We agree. The minimal perfunctory inquiry made by Supreme Court was "insufficient to establish that the court ‘engage[d] ... 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 [4th Dept. 2002], lv denied 98 N.Y.2d 767, 752 N.Y.S.2d 7, 781 N.E.2d 919 [2002] ; see People v. Hamilton, 49 A.D.3d 1163, 1164, 856 N.Y.S.2d 375 [4th Dept. 2008] ). Nevertheless, we reject defendant's contention that his sentence is unduly harsh and severe. We note, however, that the certificate of conviction contains internal inconsistencies and must therefore be amended to reflect that defendant was sentenced to an indeterminate term of incarceration of 1? to 4 years (see People v. Tumolo, 149 A.D.3d 1544, 1544, 52 N.Y.S.3d 787 [4th Dept. 2017], lv denied 29 N.Y.3d 1087, 64 N.Y.S.3d 177, 86 N.E.3d 264 [2017] ).