| People v Rock |
| 2017 NY Slip Op 05123 [151 AD3d 1383] |
| June 22, 2017 |
| Appellate Division, Third Department |
[*1](June 22, 2017)
| The People of the State of New York, Respondent, v Christopher F. Rock, Appellant. |
Richard V. Manning, Parishville, for appellant.
Andrew J. Wylie, District Attorney, Plattsburgh (Jaime A. Douthat of counsel), forrespondent.
Lynch, J. Appeal from a judgment of the County Court of Clinton County (Ryan, J.),rendered February 19, 2014, convicting defendant upon his pleas of guilty of the crimes ofburglary in the second degree (five counts) and attempted criminal sale of a controlled substancein the third degree.
In satisfaction of a 16-count indictment, defendant pleaded guilty to five counts of burglaryin the second degree and waived his right to appeal. In satisfaction of a subsequent indictment,defendant pleaded guilty to the reduced charge of attempted criminal sale of a controlledsubstance in the third degree and waived his right to appeal. County Court sentenced defendant,as a second felony offender, in accordance with the terms of the plea agreements to concurrentprison terms of 10 years followed by five years of postrelease supervision on each of the burglaryconvictions and a prison term of five years followed by two years of postrelease supervision onthe attempted criminal sale of a controlled substance conviction, to run concurrently with theburglary sentences. Defendant appeals.
Initially, we agree with defendant that the waivers of the right to appeal are invalid. Althoughdefendant executed waivers of the right to appeal, a review of the plea colloquies reflect thatCounty Court did not explain that the waivers of the right to appeal were separate and distinctfrom the rights automatically forfeited by the guilty pleas nor did the court elicit from defendantthat he understood, read or was advised of the nature of appeal waivers (see People v [*2]Ero, 139 AD3d 1248, 1249 [2016], lv denied 28NY3d 929 [2016]; People vAnderson, 129 AD3d 1385, 1385 [2015], lv denied 26 NY3d 965 [2015]). Assuch, defendant's appeal waivers do not preclude his contentions raised on appeal.
Turning to defendant's contentions, he asserts that his initial defense counsel was ineffectivebecause counsel failed to inform him that two prior, more favorable, plea offers relative to thefirst indictment would expire if not timely accepted. Defendant maintains that he would haveaccepted either of the prior offers had he been informed of the time limitations. The flaw in thisargument is that defendant's new counsel raised this same point during the initial plea colloquyand yet defendant still chose to enter a guilty plea. Moreover, defendant failed to make anypostallocution motion to preserve his objection despite a reasonable opportunity to do so(see CPL 220.60 [3]; People vWilliams, 27 NY3d 212, 214, 219-220 [2016]; People v Perkins, 140 AD3d 1401, 1403 [2016], lv denied28 NY3d 1126 [2016]; People vSantiago, 118 AD3d 1032, 1032-1033 [2014]; People v Brown, 68 AD3d 1150, 1151 [2009]). To the extent thatdefendant challenges the sentences as harsh and excessive, we disagree as the record reflects thatCounty Court thoroughly reviewed and considered the information in the presentenceinvestigation report, including defendant's criminal history and drug addiction, in imposing theagreed-upon sentence, and we find no basis to disturb the sentence in the interest of justice (see People v Zabawczuk, 128 AD3d1267, 1269 [2015], lv denied 26 NY3d 937 [2015]; People v Ganoe, 122 AD3d 1003,1004 [2014], lv denied 25 NY3d 1163 [2015]).
Garry, J.P., Egan Jr., Clark and Aarons, JJ., concur. Ordered that the judgment isaffirmed.