           SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

443
KA 11-01061
PRESENT: SMITH, J.P., LINDLEY, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

TRACY L. JONES, DEFENDANT-APPELLANT.


MICHAEL J. STACHOWSKI, P.C., BUFFALO (MICHAEL J. STACHOWSKI OF
COUNSEL), FOR DEFENDANT-APPELLANT.

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


     Appeal from a judgment of the Supreme Court, Erie County (John L.
Michalski, A.J.), rendered July 14, 2010. The judgment convicted
defendant, upon his plea of guilty, of attempted sexual abuse in the
first degree.

     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 attempted sexual abuse in the first degree
(Penal Law §§ 110.00, 130.65 [1]). We agree with defendant that his
waiver of the right to appeal is invalid. Supreme Court’s “brief
reference to the waiver of the right to appeal during the plea
colloquy was insufficient to establish that the waiver was a knowing
and voluntary choice” (People v Littleton, 62 AD3d 1267, 1268, lv
denied 12 NY3d 926). Thus, defendant’s challenge to the severity of
the sentence and his contention regarding ineffective assistance of
counsel are not encompassed by his waiver of the right to appeal.
Nevertheless, we conclude that the sentence is not unduly harsh or
severe. To the extent that defendant’s contention that he was denied
effective assistance of counsel with respect to sentencing is not
forfeited by the plea (see People v Shubert, 83 AD3d 1577, 1578), it
is lacking in merit (see generally People v Ford, 86 NY2d 397, 404).




Entered:   April 20, 2012                          Frances E. Cafarell
                                                   Clerk of the Court
