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

507
KA 12-02098
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, DEJOSEPH, AND NEMOYER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

MATTHEW ALLEN, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (KIMBERLY F. DUGUAY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Vincent M.
Dinolfo, J.), rendered September 27, 2012. The judgment convicted
defendant, upon his plea of guilty, of criminal sale of a controlled
substance in the third 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 criminal sale of a controlled substance in
the third degree (Penal Law § 220.39 [1]). As the People correctly
concede, defendant did not knowingly, voluntarily, and intelligently
waive his right to appeal. “Despite the existence of a written appeal
waiver form signed by defendant and his attorney, no questions were
asked of defendant about the appeal waiver and his understanding
thereof” (People v Frysinger, 111 AD3d 1397, 1398; see People v
Briglin, 125 AD3d 1518, 1518-1519, lv denied 26 NY3d 926). The
sentence is not unduly harsh or severe.




Entered:    June 10, 2016                          Frances E. Cafarell
                                                   Clerk of the Court
