| People v Barnes |
| 2017 NY Slip Op 03574 [150 AD3d 1338] |
| May 4, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v Cody L.Barnes, Appellant. |
Susan Patnode, Rural Law Center of New York, Castleton (Cynthia Feathers of counsel), forappellant.
John M. Muehl, District Attorney, Cooperstown (Michael F. Getman of counsel), forrespondent.
Peters, P.J. Appeal from a judgment of the County Court of Otsego County (Lambert, J.),rendered October 9, 2014, convicting defendant upon his plea of guilty of the crime of criminalsale of a controlled substance in the third degree.
In June 2014, defendant was charged in an indictment with two counts of criminal sale of acontrolled substance in the third degree. Following his arraignment on that indictment, defendantwas charged in another indictment with criminal possession of a controlled substance in the thirddegree. Pursuant to a negotiated plea agreement, and in full satisfaction of both indictments,defendant pleaded guilty to one count of criminal sale of a controlled substance in the thirddegree and executed a written waiver of appeal in open court. Consistent with the terms of theplea agreement, County Court imposed upon defendant, as a second felony offender, a prisonsentence of five years to be followed by two years of postrelease supervision. Defendant nowappeals, contending that his appeal waiver is invalid and that his agreed-upon sentence is harshand excessive.
Initially, we are unable to conclude that defendant's waiver of the right to appeal wasknowingly, intelligently and voluntarily made inasmuch as County Court failed to explain todefendant the import of the appeal waiver or that his waiver of the right to appeal was separateand distinct from the rights automatically forfeited upon a plea of guilty (see People vLemon, [*2]137 AD3d 1422, 1423 [2016], lv denied27 NY3d 1135 [2016]; People vWilliams, 132 AD3d 1155, 1155 [2015], lv denied 27 NY3d 1157 [2016]; People v Rabideau, 130 AD3d1094, 1094-1095 [2015]). Further, "[t]he written waiver [of appeal] also failed to explain theseparate and distinct nature of the right being waived" (People v Bouton, 107 AD3d 1035, 1036 [2013], lv denied21 NY3d 1072 [2013]). As County Court never adequately discussed the waiver of appeal withdefendant, the appeal waiver is invalid and defendant is not precluded from challenging theseverity of the sentence (see People vLopez, 6 NY3d 248, 257 [2006]; People v Bates, 146 AD3d 1075, 1076 [2017]; People v Larock, 139 AD3d 1241,1242-1243 [2016], lv denied 28 NY3d 932 [2016]; People v Zabawczuk, 128 AD3d 1267, 1269 [2015], lvdenied 26 NY3d 937 [2015]). In so concluding, we flatly reject the unsupportable positiontaken by the People that "[i]f [defendant's] plea was voluntary and knowing, then his waiver ofappeal as part of that plea was also."
Turning to defendant's challenge to his sentence as harsh and excessive, given defendant'sextensive criminal record and his agreement to the sentence as part of the negotiated pleaagreement in satisfaction of two indictments, we find no extraordinary circumstances nor anyabuse of discretion warranting a reduction of the sentence in the interest of justice (see Peoplev Bates, 146 AD3d at 1076; Peoplev Day, 133 AD3d 920, 920 [2015]; People v Rabideau, 130 AD3d at 1095).
Garry, Devine, Mulvey and Aarons, JJ., concur. Ordered that the judgment is affirmed.