FINSTER, FRANCIS, PEOPLE v ( 2016 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
6
KA 15-00472
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, DEJOSEPH, AND SCUDDER, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
FRANCIS FINSTER, DEFENDANT-APPELLANT.
FRANK J. NEBUSH, JR., PUBLIC DEFENDER, UTICA (DAVID A. COOKE OF
COUNSEL), FOR DEFENDANT-APPELLANT.
FRANCIS FINSTER, 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 (Michael L.
Dwyer, J.), rendered January 20, 2011. The judgment convicted
defendant, upon his plea of guilty, of course of sexual conduct
against a child in the first 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 course of sexual conduct against a child in the
first degree (Penal Law § 130.75 [1] [b]), defendant contends that his
waiver of the right to appeal is invalid and that his sentence is
unduly harsh and severe. We agree with defendant that County Court’s
“single reference to defendant’s right to appeal is 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 Spears, 106 AD3d 1534, 1535, affd 24
NY3d 1057). We reject the People’s contention that defendant signed a
waiver of the right to appeal. To the contrary, the record
establishes that defendant signed a form notice indicating that he had
the right to appeal (see 22 NYCRR 1022.11 [a]; see generally People v
June, 242 AD2d 977, 977; People v Crum, 197 AD2d 936, 937).
Nevertheless, we reject defendant’s challenge to the severity of the
sentence.
Finally, we reject defendant’s contention in his pro se
supplemental brief that he did not validly waive the right to be
prosecuted by an indictment issued by a grand jury. The record
reflects that “the written waiver—bearing the same date as the plea
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KA 15-00472
allocution—was executed in counsel’s presence, and . . . the waiver
expressly recites that it was ‘executed in open court.’ Under these
circumstances, . . . defendant’s waiver of indictment conformed to the
requirements of CPL 195.20” (People v Simmons, 110 AD3d 1371, 1372).
Entered: February 5, 2016 Frances E. Cafarell
Clerk of the Court