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

28
KA 13-01961
PRESENT: SMITH, J.P., FAHEY, CARNI, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

HAROLD R. HUNT, JR., ALSO KNOWN AS ROB HUNT,
DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (NICHOLAS P. DIFONZO OF
COUNSEL), FOR DEFENDANT-APPELLANT.

LORI PETTIT RIEMAN, DISTRICT ATTORNEY, LITTLE VALLEY (KELLY M. BALCOM
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Cattaraugus County Court (Ronald D.
Ploetz, J.), rendered September 9, 2013. The judgment convicted
defendant, upon his plea of guilty, of criminal sexual act in the
first degree, incest in the first degree and endangering the welfare
of a child.

     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, inter alia, criminal sexual act in the first degree
(Penal Law § 130.50 [4]), defendant contends that the waiver of the
right to appeal is not valid and challenges the severity of the
sentence. We agree with defendant that the waiver of the right to
appeal is invalid because the perfunctory 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, 860, lv denied 98 NY2d 767; see People v Hamilton, 49 AD3d 1163,
1164). Indeed, on this record we cannot determine “whether the court
ensured ‘that the defendant 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:    February 6, 2015                       Frances E. Cafarell
                                                   Clerk of the Court
