| People v Latifi |
| 2019 NY Slip Op 02922 [171 AD3d 1351] |
| April 18, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Fitim R. Latifi, Appellant. |
Norbert A. Higgins, Binghamton, for appellant.
Michael D. Ferrarese, Acting District Attorney, Norwich (Karen Fisher McGee, New YorkProsecutors Training Institute, Inc., Albany, of counsel), for respondent.
Egan Jr., J.P. Appeal from a judgment of the County Court of Chenango County (Downey,J.), rendered May 20, 2016, convicting defendant upon his plea of guilty of the crime of criminalsale of a controlled substance in the third degree.
In satisfaction of a four-count indictment, defendant pleaded guilty to criminal sale of acontrolled substance in the third degree and waived his right to appeal. In accordance with theterms of the plea agreement, he was sentenced as a predicate felon to seven years in prison,followed by three years of postrelease supervision, to run concurrently with a sentence that wasto be imposed upon another conviction in a different court. Defendant appeals.
Initially, we find defendant's waiver of the right to appeal to be invalid. In addition toneglecting to inform defendant that the right to appeal was separate and distinct from the otherrights that he was forfeiting by pleading guilty, the record discloses that County Court failed toadequately explain the nature of the waiver or ascertain that defendant understood its manyramifications (see People v Miller,166 AD3d 1385, 1386 [2018], lv denied 32 NY3d 1207 [2019]; People v Pittman, 166 AD3d 1243,1244 [2018], lv denied 32 NY3d 1176 [2019]).[FN1] As such, defendant is not precluded fromchallenging the severity of the sentence, but we find that the sentence is neither harsh norexcessive. Defendant has a lengthy criminal record and consented to the sentence as part of theplea agreement. Therefore, we find no extraordinary circumstances or abuse of discretionwarranting a reduction of the sentence in the interest of justice (see People v Meddaugh, 150 AD3d1545, 1548 [2017]; People vRabideau, 130 AD3d 1094, 1095 [2015]).
Defendant further contends that he was denied the effective assistance of counsel.[FN2] To the extent that he asserts thathis counsel did not adequately explain the appeal waiver, this concerns a matter outside therecord and is more properly the subject of a CPL article 440 motion (see People v Muller, 166 AD3d1240, 1241 [2018]; People vAldous, 166 AD3d 1077, 1079 [2018], lv denied 32 NY3d 1124 [2018]). As forhis claims that his counsel failed to persuade County Court to delay sentencing so that he couldsee his family one last time or to negotiate a more favorable plea agreement, the record does notsubstantiate his conclusory contentions or establish that he was denied meaningfulrepresentation. During the plea proceedings, defendant expressed his desire to have sentenceimposed as soon as possible and consented to the preplea report being used as the presentenceinvestigation report so that he could be sentenced immediately. County Court honoreddefendant's request and sentenced him at that time. Furthermore, although a more favorable offerwas communicated earlier in the proceedings, defendant rejected it and indicated that he wishedto proceed to trial. The disposition ultimately negotiated by defense counsel was advantageous todefendant, exposing him to almost half of the prison time that he could have faced if convictedafter trial, and nothing in the record casts doubt upon counsel's effectiveness (see People v Norton, 164 AD3d1502, 1503 [2018], lv denied 32 NY3d 1114 [2018]; People v Jackson, 159 AD3d 1276,1277 [2018], lv denied 31 NY3d 1149 [2018]).
Lynch, Clark, Devine and Pritzker, JJ., concur. Ordered that the judgment is affirmed.
Footnote 1:Although a written waiver wasexecuted by defendant, it is not included in the record and the People do not rely upon it insupport of their argument that the appeal waiver is valid.
Footnote 2:In view of the invalidity ofdefendant's appeal waiver, he is also not foreclosed from raising this claim as it relates to hiscounsel's alleged inadequacies (see People v Meddaugh, 150 AD3d at 1546).