| People v Burgette |
| 2014 NY Slip Op 04080 [118 AD3d 1034] |
| June 5, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vPaul H. Burgette, Also Known as Paul Meigs, Appellant. |
Cheryl L. Sovern, Clifton Park, for appellant.
Andrew J. Wylie, District Attorney, Plattsburgh (Nicholas J. Evanovich of counsel),for respondent.
Stein, J. Appeal from a judgment of the County Court of Clinton County (Ryan, J.),rendered June 13, 2012, convicting defendant upon his plea of guilty of the crimes ofburglary in the first degree and assault in the first degree.
Defendant pleaded guilty to burglary in the first degree and assault in the first degreein full satisfaction of a pending indictment, and further waived his right to appeal.County Court agreed to sentence defendant, as a second felony offender, to concurrentprison terms of 12 years to be followed by five years of postrelease supervision. Thesentence was in fact imposed, and defendant now appeals.
Defendant first challenges the validity of his appeal waiver and, "[c]ontrary to thePeople's assertion, defendant was not required to move to withdraw his plea or vacate thejudgment of conviction in order to preserve" that challenge (People v Crump, 107 AD3d1046, 1046 [2013], lv denied 21 NY3d 1014 [2013]). County Court failed tomeet its obligation to ensure that defendant understood that his appeal waiverencompassed a right "separate and distinct from those . . . automaticallyforfeited upon a plea of guilty" (People v Lopez, 6 NY3d 248, 256 [2006]; accord People v Bradshaw, 18NY3d 257, 264 [2011]). Moreover, while defense counsel indicated during the pleacolloquy that he had discussed the written waiver with [*2]defendant, the record reveals no attempt by the court toconfirm that defendant "grasped the concept of the appeal waiver and the nature of theright he was forgoing" upon the record (People v Bradshaw, 18 NY3d at 267).We accordingly agree with defendant that his appeal waiver was invalid (see People vBradshaw, 18 NY3d at 267; People v Bouton, 107 AD3d 1035, 1036 [2013], lvdenied 21 NY3d 1072 [2013]).
Defendant's further argument that his negotiated sentence was harsh and excessive isthus properly before us; nevertheless, we reject it. The charges here stemmed from anincident wherein defendant, seeking to recover marihuana he believed the victim hadstolen from him, entered the victim's residence with three other individuals and savagelyattacked him with a baseball bat. Given the vicious nature of the present offense, as wellas defendant's lengthy and violent criminal history, we perceive no abuse of discretion orextraordinary circumstances that would warrant a reduction of the sentence imposed (see People v Girard, 111 AD3d1153, 1153 [2013]; Peoplev Manley, 101 AD3d 1270, 1271 [2012]).
Peters, P.J., Garry, Egan Jr. and Clark, JJ., concur. Ordered that the judgment isaffirmed.