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

1093
KA 09-02126
PRESENT: FAHEY, J.P., PERADOTTO, LINDLEY, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

SAN ANTONIO RUSSELL, JR., DEFENDANT-APPELLANT.


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

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (STEPHEN X. O’BRIEN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Frank P.
Geraci, Jr., J.), rendered May 15, 2009. The judgment convicted
defendant as a juvenile offender upon his plea of guilty of robbery in
the first degree.

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

     Memorandum: On appeal from a judgment convicting him as a
juvenile offender upon his plea of guilty of robbery in the first
degree (Penal Law § 160.15 [4]), defendant contends that the waiver of
the right to appeal is not valid, and he 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 Hamilton, 49
AD3d 1163, 1164), we nevertheless conclude that the sentence is not
unduly harsh or severe.




Entered:   November 8, 2013                        Frances E. Cafarell
                                                   Clerk of the Court
