Opinion
03-31-2017
The PEOPLE of the State of New York, Respondent, v. 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.
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.
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 N.Y.2d 733, 737, 675 N.Y.S.2d 327, 698 N.E.2d 46 ; see People v. Lopez, 6 N.Y.3d 248, 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; cf. People v. Maracle, 19 N.Y.3d 925, 928, 950 N.Y.S.2d 498, 973 N.E.2d 1272 ). 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 A.D.2d 860, 860, 745 N.Y.S.2d 368, lv. denied 98 N.Y.2d 767, 752 N.Y.S.2d 7, 781 N.E.2d 919 ). 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 A.D.3d 1011, 1013, 968 N.Y.S.2d 300 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
PERADOTTO, J.P., LINDLEY, DeJOSEPH, NEMOYER, and TROUTMAN, JJ., concur.