| People v Ashlaw |
| 2015 NY Slip Op 02521 [126 AD3d 1236] |
| March 26, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vDavid A. Ashlaw, Appellant. |
Richard V. Manning, Parishville, for appellant.
Alexander Lesyk, Special Prosecutor, Norwood, for respondent.
Garry, J. Appeal from a judgment of the County Court of St. Lawrence County(Richards, J.), rendered July 26, 2013, convicting defendant upon his plea of guilty of thecrime of burglary in the third degree.
Pursuant to a combined plea agreement, defendant entered a guilty plea to burglary inthe third degree in satisfaction of a four-count indictment. Defendant also waivedindictment and pleaded guilty to the reduced charge of attempted burglary in the seconddegree as charged in a superior court information related to another incident, satisfyingother outstanding charges (People v Ashlaw, 126 AD3d 1238 [2015] [decided herewith]). The agreement included an appeal waiver, among otherterms. In exchange, County Court adjourned sentencing and placed defendant on interimprobation for one year in order to permit him to complete substance abuse treatment(see CPL 390.30 [6]) and avoid jail time. Defendant was required to comply withall conditions of his probation and was warned that, if he violated them, he could besentenced to consecutive seven-year prison terms on each count, with three years ofpostrelease supervision. Defendant was specifically advised that he would be required tosubmit to random drug tests, obtain negative test results and comply with allrecommended substance abuse treatment.
Sentencing was repeatedly adjourned to permit defendant to complete inpatienttreatment. Although he successfully completed the first two programs, he wasunsuccessfully discharged from the final program and, during that time, tested positivefor drugs at least four times and admitted to attempting to use substitute urine for onecourt-ordered drug test. County [*2]Court thereafterconcluded that defendant had failed to comply with the conditions of interim probationand sentenced him to a prison term of 20 months to five years on the burglary in the thirddegree conviction.[FN*] Defendant appeals.
Initially, although an appeal waiver was recited as a term of the plea agreement, therecord does not establish that defendant's appeal waiver was knowing, voluntary andintelligent (see People vLopez, 6 NY3d 248, 256 [2006]). Although County Court elicited an oral appealwaiver from defendant, the court did not explain its meaning or ascertain whether he haddiscussed the appellate process with counsel. Further, although defendant signed awritten appeal waiver in court, the court did not confirm that he had read it, was aware ofits contents or had "a full appreciation of the consequences" of such waiver (People vSeaberg, 74 NY2d 1, 11 [1989]; see People v Elmer, 19 NY3d 501, 510 [2012]; People v Bradshaw, 18 NY3d257, 264-267 [2011]). Thus, his challenge to the sentence as harsh and excessive isnot precluded (see People v Lopez, 6 NY3d at 257).
We find, however, that County Court properly considered defendant's violations ofinterim probation in determining an appropriate sentence (see People v O'Brien, 111AD3d 1028, 1029 [2013]). Given the repeated opportunities and leniency affordedhim, we find no abuse of discretion or extraordinary circumstances warranting areduction of the sentence in the interest of justice (see People v Izzo, 108 AD3d 944, 945 [2013], lvdenied 21 NY3d 1074 [2013]). His claim that interim probation was improperlyterminated was not raised prior to sentencing or in a motion to withdraw his plea and, assuch, it is unpreserved (seePeople v Waite, 119 AD3d 1086, 1087 [2014]). Moreover, defendant was givenrepeated opportunities to be heard and did not dispute the violations (see People v Kocher, 116AD3d 1301, 1302 [2014]), and the court adequately advised him of the terms of hisguilty plea and conditions of interim probation, including the potential prison sentence ifhe failed to abide by them (see People v Waite, 119 AD3d at 1087). The recorddoes not support his contention that the court promised that he would be admitted to anyparticular treatment program.
Lahtinen, J.P., Rose and Devine, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Defendant also receiveda concurrent sentence of four years with three years of postrelease supervision on theattempted burglary in the second degree conviction (People v Ashlaw,supra).