BYNG, KEVIN v. PEOPLE v , 49 N.Y.S.3d 331 ( 2017 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
267
KA 14-00575
PRESENT: PERADOTTO, J.P., LINDLEY, DEJOSEPH, NEMOYER, AND TROUTMAN,
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
KEVIN V. BYNG, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)
PETER J. DIGIORGIO, JR., UTICA, FOR DEFENDANT-APPELLANT.
KEVIN V. BYNG, DEFENDANT-APPELLANT PRO SE.
SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Oneida County Court (Barry M.
Donalty, J.), rendered September 2, 2011. The judgment convicted
defendant, upon his plea of guilty, of robbery in the second degree.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: Defendant appeals from two judgments convicting him,
upon his pleas of guilty, of robbery in the second degree (Penal Law
§ 160.10 [2] [b]) and attempted robbery in the third degree
(§§ 110.00, 160.05), respectively. In appeal No. 1, we conclude that
defendant validly waived his right to appeal and that his “general
unrestricted waiver” encompasses his challenge to the severity of his
bargained-for sentence (People v Hidalgo, 91 NY2d 733, 737; see People
v Lopez, 6 NY3d 248, 255-256; cf. People v Maracle, 19 NY3d 925, 928).
In appeal No. 2, we conclude that defendant did not validly waive his
right to appeal inasmuch as County Court failed to “ ‘engage[] 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). Nevertheless, we conclude
that the sentence in appeal No. 2 is not unduly harsh or severe.
The remaining contentions in defendant’s pro se supplemental
brief are based upon matters dehors the record, and are thus not
properly before us on defendant’s direct appeals from the judgments
(see People v Wilson, 108 AD3d 1011, 1013).
Entered: March 31, 2017 Frances E. Cafarell
Clerk of the Court