           SUPREME COURT OF THE STATE OF NEW YORK
            Appellate Division, Fourth Judicial Department
1303
KA 09-01821
PRESENT: SMITH, J.P., PERADOTTO, CARNI, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

NICHOLAS CARNO, DEFENDANT-APPELLANT.


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

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (SUSAN C.
AZZARELLI OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (Jeffrey R.
Merrill, A.J.), rendered August 4, 2009. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of a forged
instrument 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 criminal possession of a forged instrument in the
second degree (Penal Law § 170.25), defendant contends that the waiver
of the right to appeal is invalid and that the sentence is unduly
harsh and severe. We agree with defendant that the waiver of the
right to appeal is invalid. Although the record establishes that
defendant executed a written waiver of the right to appeal, there was
no colloquy between County Court and defendant regarding the waiver of
the right to appeal to ensure that it was knowingly, voluntarily and
intelligently entered (see People v Cooper, 85 AD3d 1594, 1594,
affd 19 NY3d 501). We nevertheless conclude that the sentence is not
unduly harsh or severe.




Entered:   December 21, 2012                       Frances E. Cafarell
                                                   Clerk of the Court
