| People v Labaff |
| 2015 NY Slip Op 03419 [127 AD3d 1471] |
| April 23, 2015 |
| Appellate Division, Third Department |
[*1](April 23, 2015)
| The People of the State of New York,Respondent, v Michael K. Labaff, Appellant. |
John A. Cirando, Syracuse, for appellant.
Mary E. Rain, District Attorney, Canton, for respondent.
Lynch, J. Appeal from a judgment of the County Court of St. Lawrence County(Richards, J.), rendered October 11, 2012, convicting defendant upon his plea of guiltyof the crime of criminal sale of a controlled substance in the third degree.
In satisfaction of various charges against him, defendant pleaded guilty to a superiorcourt information charging him with criminal sale of a controlled substance in the thirddegree and purportedly waived his right to appeal. The plea agreement contemplated thatdefendant would enter into the Judicial Diversion Program and that, if he failed tocomplete the program, he would face a term of imprisonment to be followed bypostrelease supervision. Defendant was ultimately charged with violating the terms of theprogram and was terminated from it after waiving his right to a hearing and admittingthat he had used cocaine and lied to program officials about that usage (see CPL216.05 [9]). County Court agreed to, and did, sentence defendant to a prison term of sixyears to be followed by postrelease supervision of three years. Defendant nowappeals.
Initially, we agree with defendant that his waiver of the right to appeal is invalid, as"he was not advised that it was a right separate and distinct from the other rights that hewas forfeiting by pleading guilty" (People v Bressard, 112 AD3d 988, 988 [2013], lvdenied 22 NY3d 1137 [2014]; see People v Bradshaw, 18 NY3d 257, 264 [2011]).Defendant's further challenge to the voluntariness of his plea was not preserved for ourreview by a postallocution motion to withdraw his plea, and he said nothing during theplea colloquy that would bring this case within the narrow exception to the preservationrequirement (see People v Lopez, 71 NY2d 662, 665-[*2]666 [1988]; People v Skidds, 123 AD3d 1342, 1342-1343 [2014]).Likewise, defendant has not preserved his argument that County Court abused itsdiscretion in terminating him from the Judicial Diversion Program, as he admitted toviolating the terms of the program in return for a specified sentence and made no effortto attack that agreement before County Court (see People v Disotell, 123 AD3d 1230, 1231 [2014]).
Turning to issues relating to defendant's sentence, we are unpersuaded that theagreed-upon sentence was harsh and excessive given defendant's extensive criminalhistory (see People vCooney, 120 AD3d 1445, 1446 [2014]; People v Johnson, 12 AD3d 727, 727-728 [2004], lvdenied 4 NY3d 745 [2004]). It is lastly evident from the record that, while CountyCourt referred to defendant as a second felony offender at sentencing, defendant fallswithin a subset of that category and was actually sentenced as a second felony drugoffender (see People vWhalen, 101 AD3d 1167, 1170 [2012], lv denied 20 NY3d 1105 [2013];compare Penal Law § 70.06 [3] [b]; [4] [b], with Penal Law§ 70.70 [3] [b] [i]). Accordingly, an amended uniform sentence andcommitment form must be prepared that reflects his status as a second felony drugoffender (see People vPatterson, 119 AD3d 1157, 1159 [2014], lv denied 24 NY3d 1046[2014]; People v Vasavada,93 AD3d 893, 894 [2012], lv denied 19 NY3d 978 [2012]; comparePeople v Whalen, 101 AD3d at 1170).
Peters, P.J., Egan Jr. and Rose, JJ., concur. Ordered that the judgment is affirmed,and matter remitted for entry of an amended uniform sentence and commitmentform.