| People v March |
| 2014 NY Slip Op 07696 [122 AD3d 1001] |
| November 13, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vJoseph A. March, Appellant. |
Allen E. Stone Jr., Vestal, for appellant.
Gerald F. Mollen, District Attorney, Binghamton (Sandra L. Cardone of counsel), forrespondent.
Lynch, J. Appeal from a judgment of the County Court of Broome County (Pelella,J.), rendered January 20, 2012, convicting defendant upon his plea of guilty of the crimeof grand larceny in the third degree.
Pursuant to a plea agreement, which also satisfied other outstanding charges,defendant waived indictment and pleaded guilty to grand larceny in the third degree ascharged in a superior court instrument, admitting that he had written checks to a businessfor which he knew there were insufficient funds in his account. As part of the agreement,he signed a six-page drug treatment court contract that, among other provisions,contained a paragraph waiving the right to appeal. Defendant entered the plea with theunderstanding that sentencing would be held in abeyance and, if he successfullycompleted a drug treatment program, he would receive a sentence of five years ofprobation; he was warned that if he did not comply, he could receive a sentence ofimprisonment of up to 2
Upon review of the record on appeal, we agree with defendant's contention that hiswaiver of the right to appeal was not valid as the record does not reflect that he wasadequately advised that the right to appeal is "separate and distinct from those rightsautomatically forfeited [*2]upon a plea of guilty" (People v Lopez, 6 NY3d248, 256 [2006]; see Peoplev Bradshaw, 18 NY3d 257, 264-266 [2011]; People v Pimentel, 108 AD3d 861, 862 [2013], lvdenied 21 NY3d 1076 [2013]; People v Gilbert, 106 AD3d 1133, 1133 [2013]; compare People v Mydosh, 117AD3d 1195, 1196 [2014], lv denied 24 NY3d 963 [2014]; People v Martin, 105 AD3d1266, 1267 [2013]). While the court informed defendant that the drug treatmentcontract he signed as part of the plea agreement included an appeal waiver and elicitedthat he had reviewed it with counsel and understood and agreed to this condition, neitherthe colloquy nor the contract made clear that the right to appeal "would otherwise survivea guilty plea" and is not "automatically extinguished upon entry of a guilty plea" so as toreflect that "defendant comprehended the nature of the waiver of appellate rights"(People v Lopez, 6 NY3d at 256-257; see People v Bradshaw, 18 NY3dat 264-267; compare People vTole, 119 AD3d 982, 982-983 [2014]; People v Henion, 110 AD3d 1349, 1350 [2013], lvdenied 22 NY3d 1088 [2014]; People v Diaz, 72 AD3d 1349, 1350 [2010], lvdenied 15 NY3d 773 [2010]). As the appeal waiver is invalid, defendant is notprecluded from challenging the sentence as harsh and excessive (see People vLopez, 6 NY3d at 255-256), but we find that his arguments in that regard are withoutmerit. He was fully advised of the consequences of noncompliance with the drugtreatment contract, including the maximum prison sentence, and was given everyopportunity to succeed in drug treatment, where he repeatedly engaged in dishonest anddeceitful behavior. Accordingly, we discern no extraordinary circumstances or abuse ofdiscretion warranting a reduction of the sentence in the interest of justice (see Peoplev Pimentel, 108 AD3d at 864).
Stein, J.P., McCarthy, Garry and Devine, JJ., concur. Ordered that the judgment isaffirmed.