People v. Fisher — 118 A.D.3d 1348

Majority

p. 1348

The People of the State of New York, Respondent, v Brian M. Fisher, Also Known as Bryan Maurice Fisher, Appellant.

[986 NYS2d 904]

Appeal from a judgment of the Supreme Court, Monroe County (Daniel J. Doyle, J.), rendered June 14, 2010. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a weapon 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 criminal possession of a weapon in the second degree (Penal Law § 265.03 [3]), defendant contends that the 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 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

p. 1349

AD2d 860 , 860 [2002], lv denied 98 NY2d 767 [2002]; see People v Hamilton, 49 AD3d 1163 , 1164 [2008]), we nevertheless conclude that the sentence is not unduly harsh or severe.

Present — Scudder, PJ., Fahey, Carni, Valentino and Whalen, JJ.

Cases cited

People v. Hamilton 49 AD3d 1163 N.Y. App. Div. 2008-03-14 at 1164 p. 1349