Appeal from a judgment of the Monroe County Court (Richard A. Keenan, J.), rendered December 23, 2008.
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.
Released on November 9, 2012
PRESENT: SCUDDER, P.J., FAHEY, CARNI, VALENTINO, AND MARTOCHE, JJ.
The judgment convicted defendant, upon his plea of guilty, of assault in the second 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 assault in the second degree (Penal Law § 120.05 ), defendant contends that his waiver of the right to appeal is not valid and 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: November 9, 2012
Frances E. Cafarell Clerk of the Court
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