| People v Destouche |
| 2017 NY Slip Op 07004 [154 AD3d 1003] |
| October 5, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v CoreyDestouche, Appellant. |
Adam W. Toraya, Albany, for appellant.
Robert M. Carney, District Attorney, Schenectady (Chandler Delamater of counsel), forrespondent.
Lynch, J. Appeal from a judgment of the County Court of Schenectady County (Giardino, J.),rendered August 5, 2014, convicting defendant upon his plea of guilty of the crime of robbery inthe third degree.
Defendant waived indictment and pleaded guilty to a superior court information charginghim with robbery in the third degree and waived his right to appeal. He was sentenced inaccordance with the plea agreement to a prison term of 2
Initially, we agree with defendant that his waiver of the right to appeal was invalid. Althoughdefendant, at some point, executed a written waiver of appeal, he answered in the negative whenCounty Court inquired as to whether he understood what it meant to give up his right to appeal.The court's ensuing explanation of the appeal waiver was insufficient and confusing, and did notexplain the separate and distinct nature of the waiver of the right to appeal from the rightsautomatically forfeited by the guilty plea. Furthermore, there was no confirmation by defendantthat any confusion regarding the appeal waiver was obviated by the court's explanation. In viewof this, the record does not establish that the waiver was knowingly, voluntarily and intelligentlymade (see People v Bates, 146AD3d 1075, 1075-1076 [2017]; People v Henry, 133 AD3d 1085, 1085-1086 [2015]).
[*2] Turning to the merits, defendant's contention that the pleawas not knowing, voluntary and intelligent is unpreserved inasmuch as the record does not reflectthat any appropriate postallocution motion was made by defendant (see People v Laflower, 145 AD3d1341, 1342 [2016]). Defendant's contention that the sentence imposed is harsh andexcessive, particularly given his lack of family support, is without merit. Our review of therecord establishes no abuse of discretion or extraordinary circumstances warranting a reductionof the agreed-upon sentence in the interest of justice (see People v Wilson, 98 AD3d 1167, 1168 [2012]; People v Harrell, 92 AD3d 974,975 [2012], lv denied 19 NY3d 864 [2012]).
McCarthy, J.P., Egan Jr., Devine and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.