           SUPREME COURT OF THE STATE OF NEW YORK
            Appellate Division, Fourth Judicial Department
5
KA 11-01023
PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

ERIC HINTZ, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALAN WILLIAMS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

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


     Appeal from a judgment of the Supreme Court, Erie County (Penny
M. Wolfgang, J.), rendered March 29, 2011. The judgment convicted
defendant, upon his plea of guilty, of attempted burglary in the
second 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 attempted burglary in the second degree (Penal Law
§§ 110.00, 140.25 [2]), defendant contends that the waiver of the
right to appeal is not valid and challenges the severity of the
sentence. We agree with defendant that the waiver of the right to
appeal is invalid because the brief 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,
860, lv denied 98 NY2d 767; see People v Hamilton, 49 AD3d 1163,
1164). Nevertheless, we conclude that the sentence is not unduly
harsh or severe.




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