
    The People of the State of New York, Respondent, v Joseph Santos, Appellant.
    [982 NYS2d 802]
   Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.), rendered September 30, 2010. The judgment convicted defendant, upon his plea of guilty, of rape in the third 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 rape in the third degree (Penal Law § 130.25 [2]), defendant contends that his waiver of the right to appeal is unenforceable and that his sentence is unduly harsh and severe. We agree with defendant that County Court failed to engage him in an adequate colloquy to ensure that his right to appeal was a knowing and voluntary choice (see People v Box, 96 AD3d 1570, 1571 [2012], lv denied 19 NY3d 1024 [2012]). Nevertheless, on the merits, we perceive no basis to exercise our power to modify defendant’s negotiated sentence of probation as a matter of discretion in the interest of justice (see CPL 470.15 [6]).

Present — Scudder, PJ., Smith, Carni, Lindley and Sconiers, JJ.  