SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
598
KA 14-01532
PRESENT: WHALEN, P.J., CARNI, NEMOYER, TROUTMAN, AND SCUDDER, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
BRADLEY V. MALONEY, DEFENDANT-APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (TIMOTHY P. MURPHY OF
COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO (ASHLEY R.
LOWRY OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Erie County Court (Michael F.
Pietruszka, J.), entered May 15, 2014. 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 that, upon his
admission that he violated the terms and conditions of probation,
revoked the sentence of probation imposed upon his conviction of,
inter alia, vehicular manslaughter in the first degree (Penal Law
§ 125.13 [6]) and vehicular assault in the first degree (§ 120.04
[6]), and sentenced him to terms of imprisonment. We agree with
defendant that his waiver of the right to appeal does not encompass
the sentence imposed following his admission that he violated the
terms and conditions of his probation because 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 Brown,
296 AD2d 860, 860, lv denied 96 NY2d 767; see generally People v
Lopez, 6 NY3d 248, 256). We nevertheless reject defendant’s
contention that the sentence imposed upon his violation of probation
is unduly harsh and severe. We note that the certificate of
conviction incorrectly states that defendant was convicted of
vehicular manslaughter in the second degree and must therefore be
corrected to reflect that he was convicted of vehicular manslaughter
in the first degree (see People v Saxton, 32 AD3d 1286, 1286-1287).
Entered: June 17, 2016 Frances E. Cafarell
Clerk of the Court