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

433
KA 12-01988
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

DAVID KITCHING, DEFENDANT-APPELLANT.


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 (Joseph E.
Fahey, J.), rendered January 24, 2012. The judgment convicted
defendant, upon his plea of guilty, of gang assault in the second
degree.

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

     Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of gang assault in the second degree (Penal Law §
120.06), defendant contends that the waiver of the right to appeal is
not valid and challenges the severity of the sentence. Although we
agree with defendant that the waiver of the right to appeal is invalid
because the perfunctory 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 Brown, 296 AD2d 860, 860, lv
denied 98 NY2d 767; see People v Jones, 107 AD3d 1589, 1589-1590, lv
denied 21 NY3d 1075), we nevertheless conclude that the sentence is
not unduly harsh or severe. “[T]he fact that . . . the codefendants
received lesser sentences [is not germane because] the circumstances
surrounding the sentencing of each were different” (People v Purcell,
8 AD3d 821, 822; see People v Prial, 118 AD3d 1498, 1499, lv denied 24
NY3d 963).




Entered:    May 1, 2015                            Frances E. Cafarell
                                                   Clerk of the Court
