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

630
KA 13-00158
PRESENT: SCUDDER, P.J., FAHEY, CARNI, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

GERALD SCHULTZ, DEFENDANT-APPELLANT.


CARA A. WALDMAN, FAIRPORT, FOR DEFENDANT-APPELLANT.

VALERIE G. GARDNER, DISTRICT ATTORNEY, PENN YAN (DAVID G. MASHEWSKE OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Yates County Court (W. Patrick
Falvey, J.), rendered November 20, 2012. The judgment convicted
defendant, upon his plea of guilty, of grand larceny in the fourth
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 grand larceny in the fourth degree (Penal Law §
155.30 [4]), 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 it is not clear based on the record before us that County
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 Johnson, 109 AD3d 1191,
1191, lv denied 22 NY3d 997), we nevertheless reject defendant’s
challenge to the severity of the sentence.




Entered:   June 13, 2014                           Frances E. Cafarell
                                                   Clerk of the Court
