| People v Patterson |
| 2014 NY Slip Op 05376 [119 AD3d 1157] |
| July 17, 2014 |
| Appellate Division, Third Department |
[*1]
| 1 The People of the State of New York,Respondent, v Lance N. Patterson, Also Known as Banks,Appellant. |
M. Elizabeth Coreno, Saratoga Springs, for appellant.
Andrew J. Wylie, District Attorney, Plattsburgh (Jaime A. Douthat of counsel), forrespondent.
Garry, J. Appeal from a judgment of the County Court of Clinton County (McGill,J.), rendered July 16, 2012, convicting defendant upon his plea of guilty of the crime ofcriminal sale of a controlled substance in the fourth degree (two counts).
In satisfaction of a four-count indictment stemming from the sale of cocaine on twooccasions, defendant entered a guilty plea to two reduced counts of criminal sale of acontrolled substance in the fourth degree pursuant to a negotiated plea agreement thatincluded a waiver of appeal and of the right to seek postconviction relief. He wassentenced, as agreed, to concurrent seven-year prison terms followed by two years ofpostrelease supervision. Defendant appeals.
Upon review of the record, including the plea colloquy and written waiver of appeal,we find that there is an insufficient basis upon which to conclude that defendant's waiverof his right to appeal was knowing, voluntary and intelligent, as neither adequatelyconveyed "that the right to appeal is separate and distinct from those rights automaticallyforfeited upon a plea of guilty" (People v Lopez, 6 NY3d 248, 256 [2006]; see People v Bradshaw, 18NY3d 257, 264 [2011]; People v Bressard, 112 AD3d 988, 988 [2013], lvdenied 22 NY3d 1137 [2014]; People v Bouton, 107 AD3d 1035, 1036 [2013], lvdenied 21 NY3d 1072 [2013]). Further, although the written waiver bears the samedate as the plea proceeding, it was not mentioned during the plea [*2]or sentencing proceedings, it was not executed by hiscounsel, and there was no "attempt by the court to ascertain on the record anacknowledgment from defendant that he had, in fact, signed the waiver or that, if he had,he was aware of its contents" (People v Callahan, 80 NY2d 273, 283 [1992]; see People v Elmer, 19 NY3d501, 510 [2012]; People v Bradshaw, 18 NY3d at 265; cf. People v McDuffie, 89AD3d 1154, 1156 [2011], lv denied 19 NY3d 964 [2012]).
Addressing the merits, we are not persuaded by defendant's contention that hissentence was harsh and excessive. The plea agreement permitted him to plead guilty totwo reduced counts of the four upon which he was indicted, and to obtain concurrent,rather than consecutive, sentences of shorter duration than the maximum allowed uponthe charges as reduced. The plea agreement did not include a promise by County Court torecommend the Willard Drug Treatment Program; the People opposed such treatmentand, ultimately, following review of the presentence investigation, County Courtdetermined that it would not be appropriate (see People v Tallman, 92 AD3d 1082, 1083 [2012], lvdenied 20 NY3d 1065 [2013]). As defendant received the promised sentence, andthe record fails to establish the presence of extraordinary circumstances or an abuse ofsentencing discretion, we decline to reduce the sentence in the interest of justice (see People v Ladieu, 105AD3d 1265, 1266 [2013], lv denied 21 NY3d 1017 [2013]).
Finally, it is apparent upon review that there is a clerical error in the uniformsentence and commitment form, as it indicates that defendant was sentenced as a secondfelony offender (see Penal Law § 70.06 [3] [c]; [4] [b]), rather thanas a second felony drug offender (see Penal Law § 70.70 [3] [b][ii]), and it must be amended accordingly (see People v Vasavada, 93 AD3d 893, 894 [2012], lvdenied 19 NY3d 978 [2012]; compare People v Whalen, 101 AD3d 1167, 1170 [2012],lv denied 20 NY3d 1105 [2013]).
Peters, P.J., Rose, Egan Jr. and Clark, JJ., concur. Ordered that the judgment isaffirmed, and matter remitted for entry of an amended uniform sentence and commitmentform.