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

92
KA 13-01262
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

ANTHONY THOMAS, ALSO KNOWN AS ZAK,
DEFENDANT-APPELLANT.
(APPEAL NO. 2.)


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SHERRY A. CHASE OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF
COUNSEL), FOR RESPONDENT.


     Appeal from a resentence of the Supreme Court, Erie County (M.
William Boller, A.J.), rendered February 28, 2011. Defendant was
resentenced upon his conviction of manslaughter in the first degree.

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

     Memorandum: In appeal No. 1, defendant appeals from a judgment
convicting him upon his plea of guilty of manslaughter in the first
degree (Penal Law § 125.20 [1]) and, in appeal No. 2, he appeals from
his resentence on that conviction. We note at the outset that
defendant’s appeal concerns only the severity of the resentence and
the threshold issue whether defendant’s waiver of the right to appeal
was valid and thus encompasses the severity of the resentence. We
therefore affirm the judgment in appeal No. 1.

     With respect to appeal No. 2, we agree with defendant that his
waiver of the right to appeal was invalid because the perfunctory
inquiry made by Supreme 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, lv denied 98 NY2d 767; see
People v Hamilton, 49 AD3d 1163, 1164). We nevertheless conclude,
however, that the resentence is not unduly harsh or severe.




Entered:   February 7, 2014                        Frances E. Cafarell
                                                   Clerk of the Court
