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

266
KA 15-00565
PRESENT: PERADOTTO, J.P., LINDLEY, DEJOSEPH, NEMOYER, AND TROUTMAN,


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

DENNIS J. CALKINS, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (TIMOTHY P. MURPHY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

JOSEPH V. CARDONE, DISTRICT ATTORNEY, ALBION (KATHERINE BOGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Orleans County Court (James P.
Punch, J.), rendered January 5, 2015. The judgment convicted
defendant, upon his plea of guilty, of unlawful manufacture of
methamphetamine in the third degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him upon a plea
of guilty of unlawful manufacture of methamphetamine in the third
degree (Penal Law § 220.73 [1]), defendant contends that his waiver of
the right to appeal is unenforceable and that his sentence is unduly
harsh and severe. As the People correctly concede, the record is
devoid of a valid waiver of the right to appeal. Although the
prosecutor stated during the plea proceeding that a waiver of the
right to appeal was a part of the plea agreement, County Court did not
engage in any colloquy with defendant concerning the waiver of the
right to appeal and thus failed to ensure that there was a knowing,
intelligent and voluntary waiver of that right (see generally People v
Lopez, 6 NY3d 248, 257). Nevertheless, we conclude that the sentence
is not unduly harsh or severe.




Entered:    March 24, 2017                         Frances E. Cafarell
                                                   Clerk of the Court
