| People v Burton |
| 2012 NY Slip Op 01695 [93 AD3d 949] |
| March 8, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v QuintenXavier Burton, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), forrespondent.
Peters, J.P. Appeal from a judgment of the County Court of Albany County (Breslin, J.),rendered December 21, 2009, convicting defendant upon his plea of guilty of the crime of assaultin the second degree.
Defendant was charged in an indictment with robbery in the first degree, robbery in thesecond degree, assault in the second degree and grand larceny in the fourth degree. He thereafterpleaded guilty to assault in the second degree in full satisfaction of the charges, in return for asentence of no more than 5½ years in prison. County Court thereafter sentenced defendantto five years in prison, to be followed by 1½ years of postrelease supervision. Defendantnow appeals and we affirm.
Initially, we agree with defendant that he did not validly waive his right to appeal. There wasno mention of an appeal waiver when the terms of the plea were placed on the record and,although defendant acknowledged that he understood that he was waiving his right to appeal,there is no indication in the record that defendant understood the ramifications of the waiver orthat he had discussed it with counsel. Accordingly, we cannot conclude that defendantknowingly, voluntarily and intelligently waived his right to appeal (see People v Bradshaw, 18 NY3d257, 264-266 [2011]; People vBolden, 78 AD3d 1419, 1420 [2010], lv denied 16 NY3d 828 [2011]; People v Headspeth, 78 AD3d1418, 1419 [2010]).[*2]
Turning to his remaining arguments, defendant's claimthat he was denied the effective assistance of counsel is unpreserved for our review in light of hisfailure to move to withdraw his plea or vacate the judgment of conviction (see People v Walker, 84 AD3d1643, 1643-1644 [2011]; People vBelle, 74 AD3d 1477, 1480 [2010], lv denied 15 NY3d 918 [2010]). Finally, wereject defendant's contention that his sentence was harsh and excessive. Although defendantrelies on being diagnosed with posttraumatic stress disorder and gender identity disorder insupport of his claim, these mental health problems do not mitigate his violent conduct (see People v Nelson, 56 AD3d 899[2008], lv denied 12 NY3d 761 [2009]; People v Masters, 36 AD3d 959, 960-961 [2007], lv denied8 NY3d 925 [2007]). In view of this, and given that defendant received a sentence that was lessthan the maximum permitted under the plea agreement, we discern no abuse of discretion byCounty Court or extraordinary circumstances warranting a reduction of the sentence in theinterest of justice (see People vMurillo, 79 AD3d 1379, 1380 [2010]; People v Aubrey, 73 AD3d 1393, 1394 [2010], lv denied16 NY3d 893 [2011]).
Rose, Kavanagh, Garry and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.