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

1022
KA 13-00202
PRESENT: SMITH, J.P., PERADOTTO, VALENTINO, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

ANTONIO MCGEE, 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 (ASHLEY R. SMALL OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Deborah
A. Haendiges, J.), rendered January 9, 2013. The judgment convicted
defendant, upon his plea of guilty, of attempted burglary 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 burglary in the second degree (Penal Law
§§ 110.00, 140.25 [2]), defendant contends that he did not validly
waive his right to appeal, and he also challenges the severity of the
sentence. We agree with defendant that his waiver of the right to
appeal is not valid because Supreme Court made only a minimal inquiry
that 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 also People v Lopez, 6
NY3d 248, 256). We nevertheless conclude that the sentence is not
unduly harsh or severe.




Entered:   October 3, 2014                         Frances E. Cafarell
                                                   Clerk of the Court
