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

444
KA 12-01165
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, LINDLEY, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

DOUGLAS MCCULLARS, 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 (Jeffrey R.
Merrill, A.J.), rendered November 30, 2010. The judgment convicted
defendant, upon his plea of guilty, of burglary in the third 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 burglary in the third degree (Penal Law §
140.20). We agree with defendant that the waiver of the right to
appeal is invalid because “the minimal 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 Box, 96 AD3d
1570, 1571, lv denied 19 NY3d 1024 [internal quotation marks omitted];
see People v Hamilton, 49 AD3d 1163, 1164; People v Brown, 296 AD2d
860, 860, lv denied 98 NY2d 767). Indeed, on this record there is no
basis upon which to conclude that 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 Lopez, 6 NY3d 248, 256). We nevertheless conclude that the
sentence is not unduly harsh or severe.




Entered:   May 2, 2014                             Frances E. Cafarell
                                                   Clerk of the Court
