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

1196
KA 09-00748
PRESENT: SCUDDER, P.J., FAHEY, CARNI, VALENTINO, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

JESSE D. PARSONS, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DREW R. DUBRIN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NICOLE M. FANTIGROSSI OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Richard A.
Keenan, J.), rendered December 23, 2008. The judgment convicted
defendant, upon his plea of guilty, of assault 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 assault in the second degree (Penal Law § 120.05
[1]), defendant contends that his waiver of the right to appeal is not
valid and 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 9, 2012                       Frances E. Cafarell
                                                   Clerk of the Court
