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

1184/14
KA 11-00696
PRESENT: SCUDDER, P.J., SMITH, PERADOTTO, CARNI, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

JAMES MCKINLEY, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK 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 (William D.
Walsh, J.), rendered January 26, 2011. 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: Defendant appeals from a judgment convicting him
upon his plea of guilty of assault in the first degree (Penal Law §
120.10 [1]). We agree with defendant that his waiver of the right to
appeal is invalid because it is not clear from the record that County
Court ensured “ ‘that [he] understood that the right to appeal is
separate and distinct from those rights automatically forfeited upon a
plea of guilty’ ” (People v Johnson, 109 AD3d 1191, 1191, lv denied 22
NY3d 997). We nevertheless conclude that the sentence is not unduly
harsh or severe.




Entered:    March 20, 2015                         Frances E. Cafarell
                                                   Clerk of the Court
