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

42
KA 11-01488
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, WHALEN, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

JUSTIN WHITE, DEFENDANT-APPELLANT.


SETH M. AZRIA, SYRACUSE, 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 (Anthony F.
Aloi, J.), rendered June 18, 2010. The judgment convicted defendant,
upon his plea of guilty, of burglary in the first degree and criminal
sexual act in the first 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 burglary in the first degree (Penal Law § 140.30
[2]) and criminal sexual act in the first degree (§ 130.50 [1]),
defendant contends that the waiver of the right to appeal is not
valid, and he challenges the severity of the sentence. Although 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), we
nevertheless conclude that the sentence is not unduly harsh or severe.




Entered:    February 1, 2013                       Frances E. Cafarell
                                                   Clerk of the Court
