| People v Holmes |
| 2017 NY Slip Op 00827 [147 AD3d 1367] |
| February 3, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v Terry L.Holmes, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Caitlin M. Connelly of counsel), fordefendant-appellant.
Joseph V. Cardone, District Attorney, Albion (Katherine Bogan of counsel), forrespondent.
Appeal from a judgment of the Orleans County Court (James P. Punch, J.), renderedSeptember 22, 2014. The judgment convicted defendant, upon his plea of guilty, of attemptedcriminal possession of a controlled substance in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty ofattempted criminal possession of a controlled substance in the third degree (Penal Law§§ 110.00, 220.16 [1]). We agree with defendant that his waiver of the right toappeal is not valid inasmuch as County Court conflated the right to appeal with those rightsautomatically forfeited by the guilty plea (see People v Sanborn, 107 AD3d 1457, 1458 [2013]). Thus, therecord fails to establish that "defendant understood that the right to appeal is separate and distinctfrom those rights automatically forfeited upon a plea of guilty" (People v Lopez, 6 NY3d 248, 256[2006]; see People v Bradshaw, 18NY3d 257, 264 [2011]). To the extent that defendant's contention that he was deniedeffective assistance of counsel at sentencing survives his guilty plea, we conclude that it lacksmerit (see People v Smith, 144AD3d 1547, 1548 [2016]). " 'Defendant was sentenced in accordance with the pleaagreement, and any alleged deficiencies in defense counsel's representation at sentencing do notconstitute ineffective assistance' " (People v Gregg, 107 AD3d 1451, 1452 [2013]; see Smith,144 AD3d at 1548; see generally People v Ford, 86 NY2d 397, 404 [1995]). We concludethat the sentence is not unduly harsh or severe, even considering that defendant's accomplicereceived a lesser sentence (see People vShaffner, 96 AD3d 1689, 1690 [2012]). We note, however, that the certificate ofconviction should be amended because it incorrectly reflects that defendant was sentenced as asecond felony offender when he was actually sentenced as a second felony drug offender (see People v Smallwood, 145 AD3d1447, 1447 [2016]; People vEasley, 124 AD3d 1284, 1285 [2015], lv denied 25 NY3d 1200 [2015]).Present—Whalen, P.J., Centra, DeJoseph, NeMoyer and Troutman, JJ.