People v Joseph PP.

2017 NY Slip Op 06006 [153 AD3d 970]

August 3, 2017

Appellate Division, Third Department

As corrected through Wednesday, September 27, 2017

[*1]

The People of the State of New York,Respondent, v Joseph PP., Appellant.

Susan Patnode, Rural Law Center of New York, Castleton (Kelly L. Egan of counsel), forappellant.

Mary E. Rain, District Attorney, Canton (Matthew L. Peabody of counsel), forrespondent.

Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.), renderedApril 22, 2015, (1) convicting defendant upon his plea of guilty of the crime of attemptedburglary in the second degree, and (2) which revoked defendant's probation and imposed asentence of imprisonment.

In 2007, defendant pleaded guilty to attempted burglary in the second degree in satisfactionof a two-count indictment and was sentenced, as a youthful offender, to five years of probation,which was later extended. In 2013, defendant was again sentenced to a five-year term ofprobation after he pleaded guilty to another charge of attempted burglary in the second degreecommitted in 2009. In 2015, defendant was charged with burglary in the second degree stemmingfrom a 2014 home invasion and, as a result, was also charged with violating the conditions of hisprobationary sentences. Under the terms of a plea agreement intended to resolve the foregoingpending matters, defendant waived indictment and pleaded guilty to the reduced charge ofattempted burglary in the second degree in satisfaction of a superior court information related tothe 2015 charge. As part of the agreement, defendant acknowledged that he was a second violentfelony offender on the new charge and admitted violating the conditions of probation, and wasrequired to waive his right to appeal. In accordance with the terms of the agreement, CountyCourt revoked probation and resentenced defendant to concurrent prison terms of 1 to 4 years onthe 2007 conviction and four years followed by three years of postrelease supervision for the2013 conviction, and imposed a [*2]consecutive prison sentenceof five years with five years of postrelease supervision, as a second violent felony offender, forthe 2015 conviction. Defendant now appeals.

We affirm. Defendant's sole contention on appeal is that the sentence is harsh and excessive.As an initial matter, while a waiver of appeal was recited as a condition of the plea agreement,the record does not reflect that defendant understood and fully appreciated the consequences ofthe appeal waiver or that it applied to both the sentence and the resentencing^[FN*] (see People v Sanders, 25 NY3d337, 340 [2015]; People vLopez, 6 NY3d 248, 256 [2006]). County Court provided no explanation of the meaningof the right to appeal or the waiver and did not ask defendant if he had discussed the waiver orappellate process with counsel (seePeople v Lewis, 138 AD3d 1346, 1347 [2016], lv denied 28 NY3d 1073 [2016];People v Davis, 136 AD3d1220, 1221 [2016], lv denied 27 NY3d 1068 [2016]; cf. People v Bryant, 28 NY3d1094, 1096 [2016]). While defendant signed a written waiver in court, the court failed toascertain that defendant had read and understood it, was aware of its contents or, again, hadreviewed it with counsel (see People v Davis, 136 AD3d at 1221). As the waiver ofappeal was not valid, defendant's challenge to the severity of the sentences is not precluded(see People v Lopez, 6 NY3d at 256; People v Larock, 139 AD3d 1241, 1242 [2016], lv denied28 NY3d 932 [2016]).

Nonetheless, we are not persuaded that the agreed-upon sentences are harsh and excessivegiven defendant's recurring violations of the conditions of probation over the span of many yearsand his repeated commission of burglaries while on probation. Although defendant was only 17years old at the time of the 2007 offense, he was granted youthful offender treatment and waspermitted to participate in a judicial diversion program (see CPL art 216). Given theseriousness of defendant's criminal history and his commission of another home invasion in 2014at the age of 25 while wearing a mask and trying to forcibly steal from the occupants, we discernno abuse of discretion or extraordinary circumstances warranting a reduction of the sentences inthe interest of justice (see CPL 470.15 [6] [b]).

Egan Jr., J.P., Lynch, Aarons, Rumsey and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.

Footnote *:The record does not reflect thatdefendant previously waived his right to appeal in connection with the first two convictions.