| People v Desrocher |
| 2018 NY Slip Op 06157 [164 AD3d 1548] |
| September 20, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Casey Desrocher, Appellant. |
Adam H. Van Buskirk, Auburn, for appellant.
Andrew J. Wylie, District Attorney, Plattsburgh (Jeffrey C. Stitt of counsel), forrespondent.
Appeal from a judgment of the County Court of Clinton County (Ryan, J.), renderedDecember 20, 2016, convicting defendant upon her plea of guilty of the crime of criminal sale ofa controlled substance in the third degree (two counts).
In satisfaction of a four-count indictment, defendant pleaded guilty to two counts of criminalsale of a controlled substance in the third degree, admitting that she had sold heroin on the datescharged. Consistent with the plea agreement, County Court sentenced defendant, as an admittedsecond felony offender, to concurrent prison terms of three years for each conviction, to befollowed by three years of postrelease supervision, to be served consecutively to the prison termshe was then serving. Defendant now appeals.
Initially, we agree with defendant that her waiver of appeal is not valid. While a waiver ofappeal was recited as a condition of the plea agreement, the record does not contain a writtenwaiver and the plea allocution reflects that, after defendant indicated that she did not understandthe waiver of appeal, County Court allowed her to confer with counsel but failed to make clearthat the right to appeal is separate and distinct from the trial-related rights that were automaticallyforfeited by her guilty plea (see People vLopez, 6 NY3d 248, 256 [2006]; People v Warren, 160 AD3d 1286, 1287 [2018]; People v Destouche, 154 AD3d1003, 1004 [2017]). As the record does not demonstrate that defendant had a "fullappreciation of the consequences" of the waiver so as to establish that it was knowing, voluntaryand intelligent (see People vBradshaw, 18 NY3d 257, 264 [2011] [internal quotation marks and citation omitted]; compare People v Sanders, 25 NY3d337, 339-341 [2015]), her challenge to the sentence as harsh and excessive is not precluded(see People v Lopez, 6 NY3d at 256). Nevertheless, we conclude that her challenge to theseverity of the sentence lacks merit given her extensive criminal record and the fact that the drugsales occurred while she was on probation for a grand larceny conviction. Considering thatdefendant faced potential consecutive 12-year sentences for each of the heroin sales, whichoccurred months apart (see Penal Law §§ 70.25 [2]; 70.70 [1] [b]; [3][b] [i]), we discern no extraordinary circumstances or abuse of discretion warranting a reductionof the agreed-upon sentence in the interest of justice.
[*2] We are unpersuaded by defendant's argument that her sentence should be reduced becausethe parties were under the apparent misapprehension that, pursuant to Penal Law§ 70.25 (2-a),[FN*] the sentences on the drug sale convictions wererequired, by law, to be imposed consecutively to the indeterminate 1- to 3-year sentence she wasserving at the time of this sentencing. Defendant was aware that, regardless of the reason, thePeople's plea offer required that the sentences on the drug sales be served consecutively to theundischarged prison term that she was then serving, and defendant knowingly accepted thatcondition of the plea. We have examined defendant's remaining contentions and find that theylack merit.
Garry, P.J., Clark, Mulvey, Aarons and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:The record reflects that thecharged sales were committed on December 7, 2015 and March 23, 2016. Subsequent to thosesales, defendant was resentenced on May 4, 2016 to an indeterminate (1- to 3-year) prison termfor violating probation on her prior grand larceny conviction. Thus, on the dates that the drugsales were committed, defendant was not "subject to an undischarged indeterminate. . . sentence of imprisonment" (Penal Law § 70.25 [2-a]) so as torequire that the drug sale sentences run consecutively to the indeterminate prison term. However,the terms of the plea agreement required consecutive sentencing.