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

615
KA 14-01536
PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, DEJOSEPH, AND NEMOYER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

EDWARD D. PRINCE, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SUSAN C. MINISTERO OF
COUNSEL), FOR DEFENDANT-APPELLANT.

LORI PETTIT RIEMAN, DISTRICT ATTORNEY, LITTLE VALLEY (AMBER L. KERLING
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Cattaraugus County Court (Ronald D.
Ploetz, J.), rendered July 7, 2014. The judgment convicted defendant,
upon his plea of guilty, of rape in the third degree and criminal
contempt in the second 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, inter alia, rape in the third degree
(Penal Law § 130.25 [2]). We agree with defendant that his waiver of
the right to appeal is invalid because, based on County Court’s
statements at the plea proceeding, “defendant may have erroneously
believed that the right to appeal is automatically extinguished upon
entry of a guilty plea” (People v Moyett, 7 NY3d 892, 893). We
nevertheless conclude that the sentence of six months of incarceration
and 10 years of probation is not unduly harsh or severe. We note that
the period of probation was required by law to be 10 years because
rape in the third degree is a felony sexual assault within the meaning
of section 65.00 (3) of the Penal Law (see § 65.00 [3] [a] [iii]).




Entered:    July 1, 2016                           Frances E. Cafarell
                                                   Clerk of the Court
