Majority
p. 1388The People of the State of New York, Respondent, v Kelvin Viera-Morales, Appellant. [3 NYS3d 690]
Appeal from a judgment of the Supreme Court, Erie County (M. William Boiler, 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
p. 1389
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 [2002], lv denied 98 NY2d 767 [2002]). We nevertheless conclude that the sentence is not unduly harsh or severe.
Present — Centra, J.P., Peradotto, Carni, Sconiers and De Joseph, JJ.