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

295
KA 13-01211
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, SCONIERS, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

KELVIN VIERA-MORALES, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (DEBORAH K. JESSEY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (M.
William Boller, A.J.), rendered June 27, 2013. The judgment convicted
defendant, upon his plea of guilty, of burglary in the first 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 first degree (Penal Law §
140.30 [1]). We agree with defendant that his waiver of the right to
appeal is invalid inasmuch as the perfunctory inquiry by Supreme 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). We nevertheless conclude that the
sentence is not unduly harsh or severe.




Entered:   March 20, 2015                          Frances E. Cafarell
                                                   Clerk of the Court
