| People v Walley |
| 2017 NY Slip Op 03570 [150 AD3d 1334] |
| May 4, 2017 |
| Appellate Division, Third Department |
| As corrected through Wednesday, June 28, 2017 |
[*1]| The People of the State of New York, Respondent, v John R.Walley, Appellant. |
G. Scott Walling, Schenectady, for appellant.
J. Anthony Jordon, District Attorney, Fort Edward (Sara E. Fischer of counsel), forrespondent.
Clark, J. Appeal from a judgment of the County Court of Washington County (McKeighan,J.), rendered April 24, 2015, convicting defendant upon his plea of guilty of the crime ofaggravated criminal contempt.
Defendant was charged in three separate indictments with multiple crimes arising fromvarious incidents of inappropriate contact that he had with the victim, who is the mother of hischildren and the subject of an order of protection. The indictments were consolidated anddefendant entered an Alford plea of guilty to the crime of aggravated criminal contemptin satisfaction thereof. Under the terms of the plea agreement, he waived his right to appeal andwas to be sentenced as a second felony offender to 21/2 to 5 years in prison.County Court sentenced defendant to the agreed-upon prison term and directed that it runconsecutively to the 1 to 3-year resentence that had been imposed upon his prior conviction ofcriminal mischief in the third degree. Defendant now appeals.
Defendant challenges the severity of the sentence which, when added to the prison term thathe is serving upon being resentenced for criminal mischief in the third degree, amounts to anaggregate prison term of 31/2 to 8 years. Preliminarily, the People concede, and weagree, that defendant's waiver of the right to appeal is invalid and does not preclude him fromraising this challenge, inasmuch as the record does not disclose that he was advised of and fullyunderstood the separate and distinct nature of the waiver (see People v Cadet, 144 AD3d 1335, 1336-1337 [2016], lvdenied 28 NY3d 1143 [2017]; People v Maxwell, 142 AD3d 739, 740 [2016]). As to [*2]the merits, defendant agreed, as part of the Alford plea, tothe sentence of 21/2 to 5 years in prison, which was well within the statutoryparameters (see Penal Law § 70.06 [3] [d]; [4] [b]). Although defendantmaintains that there is an absence of any on-the-record discussion of the manner in which thesentence would run, the record discloses that the plea offer that was communicated to defendantspecified that such sentence would run consecutively to his resentence on the criminal mischiefconviction. Furthermore, defendant has a lengthy criminal record characterized by multipleincidents of domestic violence and repeated violations of orders of protection. In view of theforegoing, we find no extraordinary circumstances nor any abuse of discretion warranting areduction of the sentence in the interest of justice (see People v Lawing, 110 AD3d 1354, 1356 [2013], lvdenied 22 NY3d 1200 [2014]; People v Spear, 37 AD3d 870, 871 [2007]).
Garry, J.P., Lynch, Rose and Aarons, JJ., concur. Ordered that the judgment is affirmed.
