People v Barnhill

2016 NY Slip Op 00547 [135 AD3d 1247]

January 28, 2016

Appellate Division, Third Department

As corrected through Wednesday, March 4, 2015

[*1]

The People of the State of New York, Respondent, vCameron Barnhill, Appellant.

Lisa A. Burgess, Indian Lake, for appellant.

Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport ofcounsel), for respondent.

Devine, J. Appeal from a judgment of the County Court of Warren County (Hall Jr.,J.), rendered January 8, 2014, convicting defendant upon his plea of guilty of the crimeof criminal possession of a controlled substance in the third degree.

In satisfaction of a four-count indictment, defendant pleaded guilty to criminalpossession of a controlled substance in the third degree and purportedly waived his rightto appeal. Consistent with the plea agreement, County Court sentenced defendant, asecond felony offender, to 41/2 years in prison to be followed by threeyears of postrelease supervision. Defendant appeals, and we affirm.

Initially, we find that defendant's waiver of appeal was not valid. During the pleaallocution, County Court failed to adequately explain the nature of the right to appeal orthe consequences of waiving that right, and a written waiver executed by defendant is notincluded in the record before us (see People v Bradshaw, 18 NY3d 257, 265 [2011]; People v Lopez, 6 NY3d248, 256 [2006]; cf. Peoplev Ramos, 7 NY3d 737, 738 [2006]). As defendant's understanding of the waiveris not "evident on the face of the record," it is not valid (People v Lopez, 6 NY3dat 256).

Defendant's argument that the agreed-upon sentence is harsh or excessive is properlybefore us as a result (see id. at 255-256); nevertheless, we reject it. The recordreflects that defendant's guilty plea was accepted only after two psychiatrists conductedCPL article 730 examinations, concluding that he was not incapacitated. In agreeing to asentence that greatly reduced defendant's potential sentencing exposure under theindictment, County Court took into [*2]consideration hismental health and substance abuse problems (see People v Eggsware, 90 AD3d 1231, 1234 [2011], lvdenied 18 NY3d 923 [2012]). Given defendant's serious criminal history, we do notfind that the sentence imposed constituted an abuse of discretion or that extraordinarycircumstances are present so as to warrant a reduction in the sentence (see CPL470.15 [6] [b]; People vCrump, 107 AD3d 1046, 1047 [2013], lv denied 21 NY3d 1014[2013]).

Peters, P.J., Garry and Rose, JJ., concur. Ordered that the judgment is affirmed.