People v. Kitching, 2015 NY Slip Op 03646

Summary of Case- In this criminal appeal, the appellate court unanimously affirmed the defendant's plea of guilty to gang assault in the second degree. The court found that defendant did not waive his right to appeal because the court did not perform an adequate colloquy. Despite retaining his ability to appeal, the court found the defendant's sentence was not so severe to warrant a reversal stating that the fact that his co-defendants received a lesser sentence is not germane to his appeal.

Decision-

People v Kitching

2015 NY Slip Op 03646

Decided on May 1, 2015

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 May 1, 2015

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department

PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, VALENTINO, AND WHALEN, JJ.

433 KA 12-01988 

[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

v

DAVID KITCHING, DEFENDANT-APPELLANT.

Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.), rendered January 24, 2012. The judgment convicted defendant, upon his plea of guilty, of gang assault in the second degree.

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.

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 gang assault in the second degree (Penal Law § 120.06), 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 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 Brown, 296 AD2d 860, 860, lv denied 98 NY2d 767; see People v Jones, 107 AD3d 1589, 1589-1590, lv denied 21 NY3d 1075), we nevertheless conclude that the sentence is not unduly harsh or severe. "[T]he fact that . . . the codefendants received lesser sentences [is not germane because] the circumstances surrounding the sentencing of each were different" (People v Purcell, 8 AD3d 821, 822; see People v Prial, 118 AD3d 1498, 1499, lv denied 24 NY3d 963).

Entered: May 1, 2015

Frances E. Cafarell

Clerk of the Court

Siskopoulos Law Firm, LLP

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