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

182
KA 13-01174
PRESENT: PERADOTTO, J.P., CARNI, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ANTHONY C. HARRIS, DEFENDANT-APPELLANT.


MULDOON, GETZ & RESTON, ROCHESTER (MARTIN P. MCCARTHY, II, OF
COUNSEL), FOR DEFENDANT-APPELLANT.

JOSEPH V. CARDONE, DISTRICT ATTORNEY, ALBION (KATHERINE BOGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Orleans County Court (James P.
Punch, J.), rendered May 6, 2013. The judgment convicted defendant,
upon his plea of guilty, of attempted criminal possession of a forged
instrument in the second degree.

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

     Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of attempted criminal possession of a forged
instrument in the second degree (Penal Law §§ 110.00, 170.25). We
agree with defendant that his waiver of the right to appeal is
invalid. “During the plea colloquy, County Court conflated the appeal
waiver with the rights automatically waived by the guilty plea”
(People v Sanborn, 107 AD3d 1457, 1458 [internal quotation marks
omitted]; see People v Tate, 83 AD3d 1467, 1467).

     Defendant failed to move to withdraw his guilty plea under CPL
220.60 (3) or to vacate the judgment of conviction under CPL 440.10
and, therefore, his challenge to the factual sufficiency of the plea
allocution is not preserved for our review (see People v Lopez, 71
NY2d 662, 665; People v McKeon, 78 AD3d 1617, 1618, lv denied 16 NY3d
799). Further, this is not one of those “rare case[s]” in which,
during the plea allocution, “defendant’s recitation of the facts
underlying the crime pleaded to clearly casts significant doubt upon
the defendant’s guilt or otherwise calls into question the
voluntariness of the plea” (Lopez, 71 NY2d at 666). In any event, we
note that “no factual colloquy was required inasmuch as defendant
pleaded guilty to a crime lesser than that charged in the indictment”
(People v Richards, 93 AD3d 1240, 1240, lv denied 20 NY3d 1014; see
People v Neil, 112 AD3d 1335, 1336, lv denied 23 NY3d 1040).
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                                                            KA 13-01174

     Finally, the sentence is not unduly harsh or severe.




Entered:   February 13, 2015                    Frances E. Cafarell
                                                Clerk of the Court
