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

527
KA 12-00341
PRESENT: SCUDDER, P.J., PERADOTTO, SCONIERS, VALENTINO, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                                MEMORANDUM AND ORDER

ERIC X. MARTINEZ, DEFENDANT-APPELLANT.


LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (JOHN E. TYO OF COUNSEL), FOR
DEFENDANT-APPELLANT.

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (JAMES B. RITTS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Ontario County Court (Frederick G.
Reed, A.J.), entered September 7, 2011. The judgment convicted
defendant, upon his plea of guilty, of rape in the first degree and
forcible touching (two counts).

     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 rape in the first degree (Penal Law § 130.35 [1])
and two counts of forcible touching (§ 130.52). We agree with defendant
that the waiver of the right to appeal was not valid inasmuch as the
record does not establish that it was knowingly, intelligently and
voluntarily entered (see People v Bradshaw, 18 NY3d 257, 259). Although
the prosecutor engaged in a colloquy with defendant regarding the waiver
of the right to appeal, County Court failed to address the waiver with
defendant and we thus conclude that the court “took no measures to ensure
that [defendant] . . . understood . . . and . . . validly waiv[ed] his
right to appeal” (People v Bradshaw, 76 AD3d 566, 568, affd 18 NY3d 257).

     We further conclude, however, that defendant’s contention that the
court erred in denying his motion seeking to sever three counts from the
remaining 11 counts of the indictment was forfeited by his guilty plea
(see People v Konieczny, 2 NY3d 569, 572; People v Hansen, 95 NY2d 227,
230). We reject defendant’s further contention that the court erred in
refusing to suppress his statement to the police, which was given without
the assistance of an interpreter. The court credited the testimony of
the police investigator who took the statement that she had no trouble
communicating with defendant and that he responded appropriately to her
questions. Defendant’s oral statement was reduced to writing, and our
review of that written statement establishes that defendant responded
appropriately to the investigator’s questions. “The [suppression]
                                 -2-                           527
                                                         KA 12-00341

court’s determination is entitled to deference and will not be disturbed
where it is supported by the record” (People v Sanders, 74 AD3d 1896,
1896; see generally People v Prochilo, 41 NY2d 759, 761). The sentence
is not unduly harsh or severe.




Entered:   April 26, 2013                       Frances E. Cafarell
                                                Clerk of the Court
