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

320
KA 13-01459
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

DERRICK R. RODDY, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (NICHOLAS T. TEXIDO
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Michael L.
D’Amico, J.), rendered July 30, 2013. The judgment convicted
defendant, upon his plea of guilty, of attempted robbery 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 robbery in the second degree (Penal Law §§
110.00, 160.10 [3]), defendant contends that the 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:    March 27, 2015                         Frances E. Cafarell
                                                   Clerk of the Court
