People v. Quinones-Rivera

People v Quinones-Rivera (2019 NY Slip Op 01936) People v Quinones-rivera 2019 NY Slip Op 01936 Decided on March 15, 2019 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. Decided on March 15, 2019 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, NEMOYER, AND TROUTMAN, JJ. 273 KA 17-00958 [*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v JUAN QUINONES-RIVERA, DEFENDANT-APPELLANT. THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KRISTIN M. PREVE OF COUNSEL), FOR DEFENDANT-APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DONNA A. MILLING OF COUNSEL), FOR RESPONDENT. Appeal from a judgment of the Erie County Court (Michael F. Pietruszka, J.), entered April 13, 2017. The judgment revoked defendant's sentence of probation and imposed a sentence of imprisonment. It is hereby ORDERED that the judgment so appealed from is unanimously affirmed. Memorandum: Defendant appeals from a judgment revoking the sentence of probation previously imposed upon his conviction of rape in the second degree (Penal Law § 130.30 [1]) and sentencing him to a determinate term of imprisonment. Even assuming, arguendo, that defendant's waiver of the right to appeal during the underlying plea proceeding was valid, we conclude, and the People correctly concede, that the waiver does not encompass his challenge to the severity of the sentence imposed following his violation of probation (see People v Giuliano, 151 AD3d 1958, 1959 [4th Dept 2017], lv denied 30 NY3d 949 [2017]; People v Tedesco, 143 AD3d 1279, 1279 [4th Dept 2016], lv denied 28 NY3d 1075 [2016]). Moreover, as the People further correctly concede, defendant's purported waiver of the right to appeal at the proceeding in which he admitted that he violated the terms of his probation is invalid inasmuch as County Court "failed to engage him in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice" (People v Maloney, 140 AD3d 1782, 1783 [4th Dept 2016] [internal quotation marks omitted]; see People v Brown, 296 AD2d 860, 860 [4th Dept 2002], lv denied 98 NY2d 767 [2002]; see generally People v Lopez, 6 NY3d 248, 256 [2006]). We further conclude, however, that the sentence imposed upon defendant's violation of probation is not unduly harsh or severe. Entered: March 15, 2019 Mark W. Bennett Clerk of the Court