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

630
KA 09-01478
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, CARNI, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                                     MEMORANDUM AND ORDER

TYRAE BOX, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (Joseph E.
Fahey, J.), rendered June 5, 2009. The judgment convicted defendant,
upon his plea of guilty, of assault in the first 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 first degree (Penal Law § 120.10
[1]), 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 minimal 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, 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:   June 15, 2012                                Frances E. Cafarell
                                                        Clerk of the Court
