46 A.D.3d 1405
N.Y. App. Div.
2007

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v ROBERT CAGGIANO, Appellant.

Appellate Division of the Supreme Court of New York, Fourth Department

848 NYS2d 797

Appeal from a judgment of the Erie County Court (Michael L. D’Amico, J.), rendered September 27, 2006.

The People of the State of New York, Respondent, v Robert Caggiano, Appellant. [848 NYS2d 797]—Appeal from a judgment of the Erie County Court (Michael L. D’Amico, J.), rendered September 27, 2006. The judgment convicted defendant, upon his plea of guilty, of attempted criminal sexual act in the first degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously modified on the law by vacating the DNA databank fee, sex offender registration fee and supplemental sex offender victim fee and as modified the judgment is affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a plea of guilty of attempted criminal sexual act in the first degree (Penal Law §§ 110.00, 130.50 [4]). We agree with defendant that his waiver of the right to appeal is invalid and does not foreclose our review of his challenge to the severity of the sentence. Based upon our review of the plea colloquy, we conclude that “defendant may have erroneously believed that the right to appeal is automatically extinguished upon