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The People of the State of New York, Respondent v. Tracy L. Jones

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


April 20, 2012

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
TRACY L. JONES, DEFENDANT-APPELLANT.

Appeal from a judgment of the Supreme Court, Erie County (John L. Michalski, A.J.), rendered July 14, 2010.

People v Jones

Decided on April 20, 2012

Appellate Division, Fourth Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

PRESENT: SMITH, J.P., LINDLEY, SCONIERS, AND MARTOCHE, JJ.

The judgment convicted defendant, upon his plea of guilty, of attempted sexual abuse 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 attempted sexual abuse in the first degree (Penal Law §§ 110.00, 130.65 [1]). We agree with defendant that his waiver of the right to appeal is invalid. Supreme Court's "brief reference to the waiver of the right to appeal during the plea colloquy was insufficient to establish that the waiver was a knowing and voluntary choice" (People v Littleton, 62 AD3d 1267, 1268, lv denied 12 NY3d 926). Thus, defendant's challenge to the severity of the sentence and his contention regarding ineffective assistance of counsel are not encompassed by his waiver of the right to appeal. Nevertheless, we conclude that the sentence is not unduly harsh or severe. To the extent that defendant's contention that he was denied effective assistance of counsel with respect to sentencing is not forfeited by the plea (see People v Shubert, 83 AD3d 1577, 1578), it is lacking in merit (see generally People v Ford, 86 NY2d 397, 404).

Entered: April 20, 2012

Frances E. Cafarell Clerk of the Court

20120420

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