People v Ortiz

2017 NY Slip Op 06111 [153 AD3d 1049]

August 10, 2017

Appellate Division, Third Department

As corrected through Wednesday, September 27, 2017

[*1]

The People of the State of New York, Respondent, v AndresOrtiz, Appellant.

G. Scott Walling, Schenectady, for appellant.

Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.

Lynch, J. Appeal from a judgment of the County Court of Schenectady County (Sypniewski,J.), rendered May 15, 2015, convicting defendant upon his plea of guilty of the crime of criminalpossession of a forged instrument in the second degree.

In 2008, defendant pleaded guilty to a superior court information charging him with criminalpossession of a forged instrument in the second degree and waived his right to appeal. Pursuantto the plea agreement, defendant was permitted to participate in a drug treatment program and,upon successful completion, would be sentenced to no more than five years of probation.Otherwise, County Court had the discretion to sentence defendant up to the maximum statutoryprison term of 21/3 to 7 years. Defendant absconded from the drug treatmentprogram and, following his return to court in 2015, County Court sentenced him to the maximumprison term of 21/3 to 7 years. Defendant now appeals.

We agree with defendant that the waiver of the right to appeal is invalid. A review of the pleacolloquy reflects that County Court did not explain "that the right to appeal is separate anddistinct from those rights automatically forfeited upon a plea of guilty" (People v Lopez, 6 NY3d 248, 256[2006]; see People v Herbert, 147AD3d 1208, 1208 [2017]). Furthermore, although a detailed written appeal waiver wasexecuted by defendant, the court made "no attempt . . . to ensure that defendantunderstood the content or consequences of the appeal waiver" (People v Herbert, 147AD3d at 1209 [internal quotation marks and citations omitted]; see People v Bradshaw, 18 NY3d257, 264 [2011]). As such, defendant's challenge to the severity of the sentence imposed isnot precluded by the appeal waiver. We are, nevertheless, unpersuaded by defendant's contentionthat the sentence is harsh and excessive. A review of the record reveals no extraordinarycircumstances or an abuse of the court's discretion and, as such, the sentence imposed will not bedisturbed (see People v Woodward,43 AD3d 496, 496[*2][2007]; People v Hope, 32 AD3d 1115,1116 [2006]; see also People v Griffin, 284 AD2d 809, 810 [2001], lv denied 97NY2d 682 [2001]).

McCarthy, J.P., Garry, Rose and Devine, JJ., concur. Ordered that the judgment isaffirmed.