| People v Headspeth |
| 2010 NY Slip Op 08646 [78 AD3d 1418] |
| November 24, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Sean Headspeth,Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Steven Sharp of counsel), for respondent.
Peters, J. Appeal from a judgment of the County Court of Albany County (Breslin, J.), renderedNovember 26, 2008, (1) convicting defendant upon his plea of guilty of the crime of burglary in the firstdegree and of violating the terms of his probation, and (2) which revoked defendant's probation andimposed a sentence of imprisonment.
In 2006, defendant pleaded guilty to attempted robbery in the second degree and wassubsequently sentenced to a jail term of six months and probation of five years. In 2008, he wascharged with numerous crimes arising out of his participation in a home invasion in the City of Albany,and a probation violation petition was filed. Defendant entered into a plea agreement wherein hepleaded guilty to one count of burglary in the first degree and the violation petition. It was further agreedthat, if defendant cooperated with authorities, the sentences would run concurrently and he would facean aggregate prison sentence of 10 years to be followed by five years of postrelease supervision.Defendant was less than cooperative with authorities, but County Court nevertheless imposed theagreed-upon sentence. He now appeals and we affirm.
Initially, we do not agree with the People's assertion that defendant validly waived his right toappeal. When the terms of the plea agreement were placed on the record, an appeal waiver was notmentioned. During the plea colloquy itself, defendant indicated that he understood he was waiving hisright to appeal, but County Court did not explain the nature of that waiver in detail and defendantneither stated that he understood its import nor discussed the [*2]matterwith counsel. As such, the record does not reveal defendant's appeal waiver to have been a knowing,intelligent and voluntary one (see People vMiddleton, 72 AD3d 1336, 1337 [2010]; People v Moran, 69 AD3d 1055, 1056 [2010]).
Defendant's sole argument that the sentence was harsh and excessive is without merit. The sentenceimposed was recommended in the plea bargain and, indeed, County Court may well have been entitledto impose a longer sentence given defendant's apparent failure to cooperate with authorities.[FN*]As we perceive neither extraordinary circumstances nor an abuse of discretion that would warrant areduction in the sentence, we decline to disturb it (see People v Garcia, 22 AD3d 880, 881 [2005]; People v Drew, 16 AD3d 840, 841[2005]).
Mercure, J.P., Rose, Malone Jr. and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.
Footnote *: County Court adjudicated defendantto be a second felony offender when, in fact, he was a second violent felony offender (seePenal Law § 70.02 [1] [a], [b], [c]). Had he been sentenced as such, a prison sentence of 10years would have been the statutory minimum (see Penal Law § 70.04 [3] [a]).