People v. Tumolo

Appeal from a judgment of the Oswego County Court (Donald E. Todd, J.), rendered August 18, 2015. The judgment convicted defendant, upon his plea of guilty, of criminal sale of a controlled substance in the third 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 sale of a controlled substance in the third degree (Penal Law § 220.39 [1]), defendant challenges the severity of his sentence. As a preliminary matter, we conclude 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 Howington, 144 AD3d 1651, 1652 [2016] [internal quotation marks omitted]; see People v Shaw, 133 AD3d 1312, 1313 [2015], lv denied 26 NY3d 1150 [2016]). Nevertheless, we conclude that the sentence is not unduly harsh or severe. We note, however, that the certificate of conviction incorrectly reflects that defendant was sentenced to three years of post-release supervision, and it must therefore be amended to reflect that he was sentenced to two years of postrelease supervision (see e.g. People v Saxton, 32 AD3d 1286, 1286-1287 [2006]).