| People v Gilbert |
| 2013 NY Slip Op 03130 [106 AD3d 1133] |
| May 2, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York,Respondent, v Sheldon W. Gilbert, Appellant. |
—[*1] Nicole M. Duve, District Attorney, Canton (Jonathan L. Becker of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of St. Lawrence County(Richards, J.), rendered July 18, 2011, convicting defendant upon his plea of guilty of thecrime of burglary in the second degree.
In satisfaction of two pending indictments and other charges, defendant pleadedguilty to one count of burglary in the second degree and waived his right to appeal. Inexchange, County Court agreed to sentence him to interim probation and reduce hisconviction to attempted burglary in the second degree and place him on probation, if hesuccessfully completed a drug treatment program; if unsuccessful in treatment, the courtwould impose a prison term for the burglary conviction. Prior to sentencing, defendantwas terminated from several treatment programs. County Court sentenced him to sixyears in prison, followed by five years of postrelease supervision. Defendant appeals.
Initially, the waiver of appeal "was invalid inasmuch as the record does not disclosethat defendant understood that this right was separate and distinct from the other rightshe forfeited by pleading guilty" (People v Secore, 102 AD3d 1059, 1060 [2013]; see People v Lopez, 6 NY3d248, 256-257 [2006]; People v Cianfarani, 81 AD3d 998, 999 [2011]).Regardless of the invalidity of the waiver, as defendant abandoned his objection duringsentencing and never moved to withdraw his plea or vacate the judgment of conviction,he did not preserve his argument concerning the enhancement of his sentence (see People v DePalma, 99AD3d 1116, [*2]1117 [2012], lv denied 20NY3d 1010 [2013]; People vHaynes, 14 AD3d 789, 790-791 [2005], lv denied 4 NY3d 831 [2005];compare People v Davis, 72AD3d 1292, 1293 [2010]). Considering defendant's multiple crimes, as well as hisinability to follow the rules to successfully complete treatment, County Court did notabuse its discretion in imposing sentence and no extraordinary circumstances exist towarrant disturbing the sentence (see People v Bean, 102 AD3d 1062, 1063 [2013]; People v Brown, 96 AD3d1236, 1237 [2012]).
Mercure, J.P., Spain and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.