People v. Lenahan

201 A.D.3d 1255

158 N.Y.S.3d 640 (Mem)

The PEOPLE of the State of New York, Respondent,

v.Thomas LENAHAN, Appellant.

111395

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: December 30, 2021

Decided and Entered: January 27, 2022

Aaron A. Louridas, Delmar, for appellant.

Joseph Stanzione, District Attorney, Catskill (Danielle D. McIntosh of counsel), for respondent.

Before: Garry, P.J., Clark, Aarons, Reynolds Fitzgerald and Colangelo, JJ.

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Greene County (Wilhelm, J.), rendered October 16, 2018, convicting defendant upon his plea of guilty of the crimes of promoting prison contraband in the first degree and attempted criminal sale of a controlled substance in the fourth degree.

Pursuant to a plea agreement, defendant pleaded guilty to promoting prison contraband in the first degree and attempted criminal sale of a controlled substance in the fourth degree. He was thereafter sentenced to a prison term of four years, followed by two years of postrelease supervision, for his attempted criminal sale conviction and to a concurrent prison term of 2½ to 5 years on the remaining conviction. Defendant appeals.

We affirm. Initially, we agree with defendant's contention that his appeal waiver is invalid. Our review of the record reveals that County Court's abbreviated explanation of the waiver of the right to appeal failed to convey the significance of the appeal waiver and that it is "separate and distinct from those rights automatically forfeited upon a guilty plea" ( People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; see People v. Pagan, 194 A.D.3d 1263, 1264, 144 N.Y.S.3d 410 [2021] ; People v. McKoy, 175 A.D.3d 1616, 1617, 108 N.Y.S.3d 520 [2019], lvs denied 34 N.Y.3d 1016, 1018, 114 N.Y.S.3d 767, 138 N.E.3d 496 [2019]; People v. Latifi, 171 A.D.3d 1351, 1351, 98 N.Y.S.3d 668 [2019] ). Although defendant executed a written appeal waiver, the court made no inquiry as to whether he had read it or understood it (see People v. Williams, 190 A.D.3d 1192, 1193, 136 N.Y.S.3d 919 [2021] ; People v. Kehn, 173 A.D.3d 1564, 1564, 101 N.Y.S.3d 666 [2019] ). As defendant's understanding of the appeal waiver is not reflected on the face of the record, it is invalid and, thus, he is not precluded from challenging the severity of his sentence (see People v. Pagan, 194 A.D.3d at 1264, 144 N.Y.S.3d 410 ; People v. Gervasio, 190 A.D.3d 1190, 1191, 136 N.Y.S.3d 813 [2021] ; People v. McKoy, 175 A.D.3d at 1617, 108 N.Y.S.3d 520 ; People v. Levielle, 161 A.D.3d 1391, 1392, 77 N.Y.S.3d 575 [2018] ; compare People v. Bateman, 151 A.D.3d 1482, 1483–1484, 59 N.Y.S.3d 159 [2017], lv denied 31 N.Y.3d 981, 77 N.Y.S.3d 659, 102 N.E.3d 436 [2018] ).

We are nevertheless unpersuaded by defendant's claim that his sentence was harsh and excessive. Defendant's criminal history is extensive — in fact, he was on parole at the time of the instant offense — and the sentence imposed, which is below the statutory maximum, was agreed upon as part of his plea. Accordingly, we find no extraordinary circumstances or abuse of discretion warranting a reduction of the sentence in the interest of justice (see People v. Barzee, 190 A.D.3d 1016, 1021–1022, 138 N.Y.S.3d 718 [2021], lv denied 36 N.Y.3d 1094, 144 N.Y.S.3d 110, 167 N.E.3d 1245 [2021] ; People v. Lane, 159 A.D.3d 1195, 1195–1196, 69 N.Y.S.3d 842 [2018] ; People v. Ildefonso...