| People v Beverly |
| 2016 NY Slip Op 01874 [137 AD3d 1421] |
| March 17, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vKeon Beverly, Appellant. |
Aaron A. Louridas, Delmar, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Schenectady County(Drago, J.), rendered January 13, 2011, convicting defendant upon his plea of guilty ofthe crimes of assault in the second degree and perjury in the first degree.
In satisfaction of a 12-count indictment, defendant pleaded guilty to assault in thesecond degree and perjury in the first degree. He also waived his right to appeal, bothorally and in writing. In accordance with the terms of the plea agreement, defendant wassentenced as a second felony offender to four years in prison to be followed by five yearsof postrelease supervision on the assault conviction, and 3 to 6 years in prison on theperjury conviction, said sentences to run consecutively. Defendant now appeals.
Defendant's primary contention is that he was denied the effective assistance ofcounsel and that this rendered his guilty plea involuntary. Although this type of claim isnot foreclosed by a valid waiver of the right to appeal, it has not been preserved for ourreview as there is no indication in the record that defendant made an appropriatepostallocution motion (seePeople v Broomfield, 128 AD3d 1271, 1271-1272 [2015], lv denied 26NY3d 1086 [2015]; People vBrown, 128 AD3d 1273, 1274 [2015]). Defendant next challenges the severityof the sentence—a challenge that is precluded by a valid waiver of the right toappeal. However, we find that the waiver here was invalid inasmuch as it does not appearthat defendant was advised that the right to appeal was separate and distinct from theother rights that he was forfeiting by pleading guilty (see People v Lopez, 6 NY3d 248, 256 [2006]; People v Pope, 129 AD3d1389, 1389-1390 [2015]; People v Burgette, 118 AD3d 1034, 1035 [2014], lvdenied 24 NY3d 1118 [2015]). [*2]Turning to themerits, we note that defendant has a lengthy criminal record and agreed to the sentence aspart of a favorable plea agreement that exposed him to less time in prison than if he wasconvicted after trial. Accordingly, we find no abuse of discretion nor any extraordinarycircumstances warranting a reduction of the sentence in the interest of justice (see People v Miller, 66 AD3d1242, 1243-1244 [2009], lv denied 14 NY3d 772 [2010]; People v Humphrey, 13 AD3d815, 816 [2004], lv denied 4 NY3d 799 [2005]).
Peters, P.J., Garry and Devine, JJ., concur. Ordered that the judgment isaffirmed.