| People v Klemko |
| 2017 NY Slip Op 03994 [150 AD3d 1487] |
| May 18, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Matthew Klemko, Appellant. |
Susan Patnode, Rural Law Center of New York, Castleton (Kelly L. Egan of counsel), forappellant.
Mary E. Rain, District Attorney, Canton (Matthew L. Peabody of counsel), forrespondent.
Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.), renderedAugust 12, 2015, (1) convicting defendant upon his plea of guilty of the crime of attemptedburglary in the second degree, and (2) which revoked defendant's probation and imposed asentence of imprisonment.
In 2009, defendant pleaded guilty to attempted burglary in the second degree and waived hisright to appeal. Under the terms of the plea agreement, he was sentenced to five years ofprobation. Although he was charged in 2012 and again in 2013 with violating the conditions ofhis probation, his probation was continued. In February 2015, defendant was charged withviolating the conditions of his probation a third time. Shortly thereafter, he was charged in amulticount indictment with numerous crimes arising from his involvement in a drug distributionring and the violation of probation petition was amended accordingly. County Court conductedplea proceedings to address the criminal charges filed against defendant in the new indictment, aswell as the charges in the amended violation of probation petition. Under the terms of the pleaagreement, defendant pleaded guilty to attempted burglary in the second degree in satisfaction ofthe new indictment and waived his right to appeal, both orally and in writing, and admitted toviolating a condition of his probation. In accordance with the terms of the plea agreement, on thenew attempted burglary conviction, he was sentenced as a second violent felony offender to fiveyears in prison, to be followed by five years of postrelease supervision. In addition, on theoriginal attempted burglary conviction, his probation was revoked and he was resentenced to fiveyears in prison, to be followed by three years of postrelease supervision. These sentences were torun consecutively. Defendant now appeals.
[*2] Defendant's sole contention is that the sentence is harsh and excessive. With respect to hissentence on the new attempted burglary conviction, he is precluded from raising this claim by hisvalid waiver of the right to appeal (seePeople v Moulton, 134 AD3d 1251, 1252 [2015]; compare People v Headspeth, 78 AD3d 1418, 1419 [2010]).However, the appeal waiver in connection with the original sentence on the attempted burglaryconviction does not preclude him from challenging the severity of the resentence (see People v McFadden, 127 AD3d1340, 1341 [2015], lv denied 26 NY3d 932 [2015]; People v Lavalley, 100 AD3d1151, 1151 n [2012]). The record reflects defendant's lengthy criminal history, repeatedviolations of the terms of his probation and his discharge from several substance abuse treatmentopportunities for multiple transgressions. On the record before us, "we discern neitherextraordinary circumstances nor an abuse of discretion warranting a reduction of his agreed-uponsentence in the interest of justice" (People v Vallance, 137 AD3d 1327, 1328 [2016]; see People vMcFadden, 127 AD3d at 1341). Accordingly, the judgment must be affirmed.
Egan Jr., J.P., Devine, Clark, Mulvey and Aarons, JJ., concur. Ordered that the judgment isaffirmed.