MCKINLEY, JAMES, PEOPLE v

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department 1184/14 KA 11-00696 PRESENT: SCUDDER, P.J., SMITH, PERADOTTO, CARNI, AND SCONIERS, JJ. THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, V MEMORANDUM AND ORDER JAMES MCKINLEY, DEFENDANT-APPELLANT. FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL OF COUNSEL), FOR RESPONDENT. Appeal from a judgment of the Onondaga County Court (William D. Walsh, J.), rendered January 26, 2011. The judgment convicted defendant, upon his plea of guilty, of assault 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 assault in the first degree (Penal Law § 120.10 [1]). We agree with defendant that his waiver of the right to appeal is invalid because it is not clear from the record that County Court ensured “ ‘that [he] understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty’ ” (People v Johnson, 109 AD3d 1191, 1191 , lv denied 22 NY3d 997 ). We nevertheless conclude that the sentence is not unduly harsh or severe. Entered: March 20, 2015 Frances E. Cafarell Clerk of the Court