| People v Lemon |
| 2016 NY Slip Op 01875 [137 AD3d 1422] |
| March 17, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vCody Lemon, Appellant. |
David E. Woodin, Catskill, for appellant.
James R. Farrell, District Attorney, Monticello (Meagan K. Galligan of counsel), forrespondent.
Devine, J. Appeal from a judgment of the County Court of Sullivan County(LaBuda, J.), rendered May 22, 2014, convicting defendant upon his plea of guilty of thecrimes of burglary in the second degree, criminal possession of a weapon in the seconddegree and grand larceny in the fourth degree.
Pursuant to a negotiated plea agreement, defendant waived indictment and pleadedguilty to burglary in the second degree, criminal possession of a weapon in the seconddegree and grand larceny in the fourth degree as charged in a superior court information.The plea agreement included a waiver of appeal and satisfied a multitude of otherpending criminal charges primarily emanating from larcenies, as well as violation ofprobation petitions. The agreement provided that the aggregate sentence would becapped at 10 years and could be as low as five years, with five years of postreleasesupervision. Consistent with the agreement, County Court imposed an aggregate prisonsentence of eight years to be followed by five years of postrelease supervision, andordered defendant to pay restitution. Defendant appeals.
Defendant initially contends that his waiver of appeal was invalid, and we agree. Areview of the record reveals that County Court failed to explain the significance of anappeal waiver or convey that it is "separate and distinct from those rights automaticallyforfeited upon a guilty plea" (People v Lopez, 6 NY3d 248, 256 [2006]; see People v Sanders, 25 NY3d337, 340-341 [2015]; People v Rabideau, 130 AD3d 1094, 1094-1095 [2015];People v Harris, 121 AD3d [*2]1423, 1424[2014], lv denied 25 NY3d 989 [2015]). Although defendant acknowledged thathe had signed a written waiver of appeal during the plea proceedings, no inquiry wasmade as to whether he had read and understood it (see People v Rabideau, 130AD3d at 1095). As defendant's understanding of the appeal waiver is not reflected on theface of the record, it is invalid and defendant is not precluded from challenging theseverity of the sentence (seePeople v Zabawczuk, 128 AD3d 1267, 1269 [2015], lv denied 26 NY3d937 [2015]).
Turning to that challenge, the record reflects that, while on probation, defendantengaged in a protracted crime spree in which he victimized many members of hiscommunity. The sentence imposed by County Court was far less than the consecutivesentences allowed for these separate criminal acts (see Penal Law§ 70.25 [2]; People v Ramirez, 89 NY2d 444, 451 [1996]) andbelow the promised 10-year cap. In view of these facts and his prior criminal history, weare not persuaded that the sentence imposed was harsh or excessive or that extraordinarycircumstances warrant a reduction in the interest of justice (see CPL 470.15 [6][b]; People v Ashlaw, 126AD3d 1236, 1237 [2015]).
Peters, P.J., Garry, Rose and Clark, JJ., concur. Ordered that the judgment isaffirmed.