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

442
KA 15-01726
PRESENT: WHALEN, P.J., SMITH, CENTRA, TROUTMAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

BRIAN T. TUMOLO, DEFENDANT-APPELLANT.


LINDA M. CAMPBELL, SYRACUSE, FOR DEFENDANT-APPELLANT.

GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO (AMY L. HALLENBECK OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Oswego County Court (Donald E.
Todd, J.), rendered August 18, 2015. The judgment convicted
defendant, upon his plea of guilty, of criminal sale of a controlled
substance 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 his
plea of guilty of criminal sale of a controlled substance in the third
degree (Penal Law § 220.39 [1]), defendant challenges the severity of
his sentence. As a preliminary matter, we conclude 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
Howington, 144 AD3d 1651, 1652 [internal quotation marks omitted]; see
People v Shaw, 133 AD3d 1312, 1313, lv denied 26 NY3d 1150).
Nevertheless, we conclude that the sentence is not unduly harsh or
severe. We note, however, that the certificate of conviction
incorrectly reflects that defendant was sentenced to three years of
postrelease supervision, and it must therefore be amended to reflect
that he was sentenced to two years of postrelease supervision (see
e.g. People v Saxton, 32 AD3d 1286, 1286-1287).




Entered:    April 28, 2017                         Frances E. Cafarell
                                                   Clerk of the Court
