| People v Anderson |
| 2015 NY Slip Op 05519 [129 AD3d 1385] |
| June 25, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vMelvin D. Anderson, Also Known as AK, Appellant. |
Rebecca L. Fox, Plattsburgh, for appellant.
Andrew J. Wylie, District Attorney, Plattsburgh (Timothy Blatchley of counsel), forrespondent.
Appeal from a judgment of the County Court of Clinton County (Ryan, J.), renderedAugust 27, 2012, convicting defendant upon his plea of guilty of the crime of criminalpossession of a controlled substance in the fourth degree (two counts).
When defendant's appeal was previously before this Court, we rejected anAnders brief, withheld decision and assigned new counsel to address at least oneissue of arguable merit pertaining to the validity of defendant's appeal waiver that may, inturn, implicate other potential appellate issues (120 AD3d 1490 [2014]). Defendant nowasserts that his waiver of the right to appeal was invalid and seeks to challenge thesentence imposed as harsh and excessive. A review of the record establishes thatdefendant's waiver of the right to appeal was not knowing, voluntary and intelligent (see People v Bradshaw, 18NY3d 257, 264-265 [2011]; People v Patterson, 119 AD3d 1157, 1158 [2014], lvdenied 24 NY3d 1046 [2014]). County Court's perfunctory inquiry was insufficient"to ensure that defendant grasped the minimal information pertaining to the appealwaiver" (People v Bradshaw, 18 NY3d at 265) and, although the record containsan executed written appeal waiver, County Court made no inquiry concerning it duringthe plea colloquy (see People vElmer, 19 NY3d 501, 510 [2012]; People v DeSimone, 80 NY2d 273,283 [1992]; People vPhipps, 127 AD3d 1500, 1501 [2015]). Defendant's challenge to the severity ofthe sentence is, therefore, not precluded (see People v Ashlaw, 126 AD3d 1236, 1237 [2015]). We,nevertheless, find that the agreed-upon sentence was not harsh or excessive as the recordreveals no abuse of discretion or extraordinary circumstances warranting a reduction ofthe sentence in the interest of justice (see People v Patterson, 119 AD3d at1158-1159; People vWilson, 92 AD3d 981, 982 [2012], lv [*2]denied 19 NY3d 1029 [2012]).
McCarthy, J.P., Garry, Rose and Lynch, JJ., concur. Ordered that the judgment isaffirmed.