| People v Murillo |
| 2010 NY Slip Op 09301 [79 AD3d 1379] |
| December 16, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Alberto Murillo,Appellant. |
—[*1] James R. Farrell, District Attorney, Monticello (Bonnie M. Mitzner of counsel), forrespondent.
Garry, J. Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.), renderedDecember 15, 2009, convicting defendant upon his plea of guilty of the crime of assault in the seconddegree.
Defendant, a prison inmate, was charged with assault in the second degree, promoting prisoncontraband in the first degree and promoting prison contraband in the second degree (two counts).Pursuant to a plea agreement, defendant pleaded guilty to assault in the second degree in full satisfactionof the charges. He was thereafter sentenced as a second felony offender to the agreed-upon term offive years in prison, to be followed by three years of postrelease supervision, with the sentence to beserved consecutively to the one he was then serving. Defendant now appeals.
Defendant's written waiver of appeal is entirely unsupported by the plea colloquy. There is not evena minimal indication upon the record of proceedings in open court that defendant understood thewaiver, that it was a term of his plea agreement, or that he had discussed such waiver with counsel atany point. Thus, the record does not demonstrate that defendant knowingly, intelligently and voluntarilywaived his right to appeal (see People vMcCaskill, 76 AD3d 751, 752 [2010]; People v Riddick, 40 AD3d 1259, 1259-1260 [2007], lv [*2]denied 9 NY3d 925 [2007]).
Nonetheless, we disagree with defendant's assertion that his sentence is harsh and excessive.County Court imposed the agreed-upon sentence, and we discern no abuse of discretion by the courtor extraordinary circumstances warranting a reduction of the sentence in the interest of justice (see People v Middleton, 72 AD3d1336, 1337 [2010]; People vMoran, 69 AD3d 1055, 1056 [2010]).
Mercure, J.P., Malone Jr., Kavanagh and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.