| People v Gonzalez |
| 2016 NY Slip Op 03220 [138 AD3d 1353] |
| April 28, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vJustin Gonzalez, Appellant. |
Cliff Gordon, Monticello, for appellant.
James R. Farrell, District Attorney, Monticello (Hannah Rose Prall of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Sullivan County (LaBuda,J.), rendered March 5, 2014, convicting defendant upon his pleas of guilty of the crimesof assault in the first degree, assault in the second degree, resisting arrest and criminalmischief in the fourth degree.
Defendant pleaded guilty to a superior court information charging him with assault inthe second degree, resisting arrest and criminal mischief in the fourth degree and waivedhis right to appeal. Prior to sentencing, defendant was involved in another incident andultimately pleaded guilty to assault in the first degree and, again, waived his right toappeal. In accordance with the plea agreements, County Court sentenced defendant toconcurrent prison terms of seven years followed by five years of postrelease supervisionon each of the assault convictions and one year each on the remaining two misdemeanorconvictions, the sentences to run concurrently. Defendant now appeals.
Initially, we find that defendant's waivers of the right to appeal were invalid.Although defendant executed detailed written waivers, a review of the record establishesthat County Court "did not adequately convey that the right to appeal is separate anddistinct from those rights automatically forfeited upon a plea of guilty but, rather,improperly lumped those rights together," and the court did not adequately "ensure thatdefendant understood the content or consequences of the appeal waiver" (People v Williams, 132 AD3d1155, 1155 [2015] [internal quotation marks and citations omitted]; see People v Mones, 130AD3d 1244, 1244-1245[*2][2015]). As such,defendant's challenge to the severity of the sentences imposed is properly before us forreview. Nonetheless, we find that the agreed-upon sentences are not harsh or excessive asour review of the record does not reveal an abuse of County Court's discretion or anyextraordinary circumstances that would warrant a reduction of defendant's sentence in theinterest of justice (see People vFilion, 134 AD3d 1244, 1245 [2015]; People v Anderson, 129 AD3d 1385, 1385 [2015], lvdenied 26 NY3d 965 [2015]).[FN*]
McCarthy, J.P., Egan Jr., Devine and Clark, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:We note that the periodof postrelease supervision for defendant's conviction of assault in the second degree,which is a class D violent felony (see Penal Law § 120.05 [3]), shallnot be "more than three years whenever a determinate sentence of imprisonment isimposed pursuant to [Penal Law § 70.02 (3)] upon a conviction of a class D. . . violent felony offense" (Penal Law § 70.45 [2] [e]).However, inasmuch as the five-year period of postrelease supervision imposed inconnection with defendant's conviction of assault in the first degree was proper(see Penal Law § 70.45 [2] [f]), and the sentences imposed are torun concurrently, any challenge to the improperly imposed postrelease supervision isacademic.