| People v Rabideau |
| 2015 NY Slip Op 05715 [130 AD3d 1094] |
| July 2, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vGerald A. Rabideau, Appellant. |
Lisa A. Burgess, Indian Lake, for appellant.
Andrew J. Wylie, District Attorney, Plattsburgh (Timothy Blatchley of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Clinton County (McGill, J.),rendered September 4, 2013, convicting defendant upon his plea of guilty of the crime ofcriminal sale of a controlled substance in the third degree.
Defendant was charged with criminal sale of a controlled substance in the thirddegree (two counts) and criminal possession of a controlled substance in the third degree(two counts). In satisfaction of the charges, he pleaded guilty to one count of criminalsale of a controlled substance in the third degree and purportedly waived his right toappeal. In accordance with the plea agreement, County Court sentenced defendant, as asecond felony offender, to a prison term of seven years to be followed by two years ofpostrelease supervision. Defendant now appeals, contending that his appeal waiver isinvalid and that his agreed-upon sentence is harsh and excessive.
Initially, we cannot conclude that defendant's waiver of the right to appeal wasknowingly, intelligently and voluntarily made inasmuch as County Court did notadequately explain to defendant that his waiver of the right to appeal was separate anddistinct from the rights automatically forfeited upon a plea of guilty (see People v Bradshaw, 18NY3d 257, 264-265 [2011]; People v Labaff, 127 AD3d 1471, 1471 [2015]; People v Ritter, 124 AD3d1133, 1134 [2015]). Although a written waiver dated the same day as the pleaproceeding is in the record, "County Court made no inquiry as to whether defendantunderstood [it] or whether his counsel had in fact discussed the waiver[ ] with him" (People v Phipps, 127 AD3d1500, 1501[*2][2015]; see People v Vences, 125AD3d 1050, 1051-1052 [2015]). Accordingly, we hold that the appeal waiver isunenforceable and, thus, defendant's challenge to the sentence as harsh and excessive isnot precluded (see People vLopez, 6 NY3d 248, 257 [2006]; People v Ashlaw, 126 AD3d 1236, 1237 [2015]).However, based upon defendant's extensive criminal history, we find no extraordinarycircumstances or abuse of discretion that would require modification in the interest ofjustice (see People v Labaff, 127 AD3d at 1472; People v Richards, 124 AD3d1146, 1147-1148 [2015], lv denied 25 NY3d 992 [2015]).
Lahtinen, J.P., McCarthy and Clark, JJ., concur. Ordered that the judgment isaffirmed.