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

569
KA 12-02354
PRESENT: SCUDDER, P.J., SMITH, CENTRA, AND LINDLEY, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

JAMISON SANBORN, DEFENDANT-APPELLANT.


J. SCOTT PORTER, SENECA FALLS, FOR DEFENDANT-APPELLANT.

SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Oneida County Court (Michael L.
Dwyer, J.), rendered April 3, 2012. The judgment convicted defendant,
upon his plea of guilty, of robbery in the first degree and menacing
in the second 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, inter alia, robbery in the first degree
(Penal Law § 160.15 [3]). We agree with defendant that his waiver of
the right to appeal is not valid (see People v Jackson, 99 AD3d 1240,
1240-1241, lv denied 20 NY3d 987). During the plea colloquy, County
Court “conflated the appeal waiver with the rights automatically
waived by the guilty plea” (People v Martin, 88 AD3d 473, 474, affd 19
NY3d 914; see People v Hawkins, 94 AD3d 1439, 1439-1440, lv denied 19
NY3d 974; People v Tate, 83 AD3d 1467, 1467), and thus “the record
fails to establish that defendant understood that the right to appeal
is separate and distinct from those rights automatically forfeited
upon a plea of guilty” (Jackson, 99 AD3d at 1241 [internal quotation
marks omitted]). Although defendant’s contentions with respect to the
severity of the sentence therefore are not encompassed by the invalid
waiver, we nevertheless conclude that the sentence is not unduly harsh
or severe. In light of our determination, we do not address
defendant’s remaining contentions with respect to his waiver of the
right to appeal.




Entered:   June 7, 2013                            Frances E. Cafarell
                                                   Clerk of the Court
