| People v O'Connell |
| 2011 NY Slip Op 00298 [80 AD3d 1007] |
| January 20, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v John P.O'Connell, Appellant. |
—[*1]
Appeal from a judgment of the County Court of Columbia County (Czajka, J.), renderedSeptember 23, 2009, convicting defendant upon his plea of guilty of the crimes of rape in thethird degree and endangering the welfare of a child.
Defendant waived indictment and pleaded guilty to the crimes of rape in the third degree andendangering the welfare of a child as charged in a superior court information. The People anddefendant agreed to a joint recommendation that defendant would be sentenced to two years inprison on the rape charge, to be followed by five years of postrelease supervision. County Court,however, did not make a commitment to be bound by the joint recommendation. In addition,defendant waived his right to appeal, but preserved his right to appeal from a sentence greaterthan the joint recommendation. County Court did not follow the joint recommendation andsentenced defendant to 2½ years in prison, followed by 10 years of postrelease supervision,for rape in the third degree, and one year in jail for endangering the welfare of a child, to runconcurrently. Defendant appeals.
Initially, we note that defendant's challenge to the severity of the sentence was notencompassed by his waiver of appeal and, therefore, is not precluded thereby (compare People v Clements, 74 AD3d1636 [2010]). Although he claims that County Court improperly enhanced his sentencebeyond the joint recommendation, we find this claim to be unavailing considering that CountyCourt was not bound to impose the sentence that was jointly recommended and adviseddefendant of the maximum potential prison exposure (see People v Watson, 61 AD3d[*2]1217, 1219 [2009], lv denied 12 NY3d 930 [2009]).While the court could have explained in more detail that it was not bound by the plea agreementreached with the People, the comments of defendant's counsel during the plea colloquy lead us tobelieve that defendant was aware that the court would not be so bound. Furthermore, the recorddoes not reveal any abuse of discretion nor the existence of extraordinary circumstanceswarranting a reduction of the sentence in the interest of justice (see People v Meiner, 20 AD3d778 [2005]). Therefore, we decline to disturb the judgment of conviction.
Cardona, P.J., Spain, Rose, Kavanagh and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.