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

230
KA 10-02204
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

JOSEPH SANTOS, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (KRISTEN MCDERMOTT OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (Joseph E.
Fahey, J.), rendered September 30, 2010. The judgment convicted
defendant, upon his plea of guilty, of rape 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 rape in the third degree (Penal Law § 130.25 [2]),
defendant contends that his waiver of the right to appeal is
unenforceable and that his sentence is unduly harsh and severe. We
agree with defendant that County Court failed to engage him in an
adequate colloquy to ensure that his right to appeal was a knowing and
voluntary choice (see People v Box, 96 AD3d 1570, 1571, lv denied 19
NY3d 1024). Nevertheless, on the merits, we perceive no basis to
exercise our power to modify defendant’s negotiated sentence of
probation as a matter of discretion in the interest of justice (see
CPL 470.15 [6]).




Entered:   March 28, 2014                          Frances E. Cafarell
                                                   Clerk of the Court
