| People v Dumas |
| 2017 NY Slip Op 08053 [155 AD3d 1256] |
| November 16, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Jennifer L. Dumas, Appellant. |
Lisa A. Burgess, Indian Lake, for appellant.
Andrew J. Wylie, District Attorney, Plattsburgh (Jason Marx of counsel), forrespondent.
Pritzker, J. Appeal from a judgment of the County Court of Clinton County (McGill, J.),rendered December 17, 2015, convicting defendant upon her plea of guilty of the crime ofattempted burglary in the second degree.
Defendant waived indictment and agreed to be prosecuted by a superior court informationcharging her with attempted burglary in the second degree. She pleaded guilty to this crime andwaived her right to appeal, both orally and in writing. In accordance with the terms of the pleaagreement, she was sentenced to 2
Initially, we find that defendant's waiver of the right to appeal is invalid given that CountyCourt did not explain the separate and distinct nature of the waiver or ascertain that defendantfully understood its consequences (seePeople v Ortiz, 153 AD3d 1049, 1049 [2017]; People v Rock, 151 AD3d 1383, 1384 [2017], lv denied 30 NY3d 953 [2017]). As such, the waiver does not preclude the claims that defendant raiseshere, namely, that her counsel was ineffective and that her sentence is harsh and excessive.
With regard to the former, defendant contends that she was denied the effective assistance ofcounsel because her counsel incorrectly represented to County Court that the sentencerecommended in the presentence investigation report was the same as that included in [*2]the plea agreement and also did not diligently advocate for a lessersentence. Although the record reveals that counsel made the inaccurate representation, defendanthas not demonstrated that she was prejudiced insofar as she was sentenced in accordance with thenegotiated plea agreement and did not express any desire to be relieved from its terms (see People v Doane, 145 AD3d1088, 1090 [2016], lv denied 29 NY3d 997 [2017]; People v Bonavita, 270AD2d 570, 571 [2000]). Moreover, the record reveals that counsel related to County Court themitigating circumstances that were relevant to sentencing. In view of this, we find defendant'sclaim to be without merit.
With regard to her challenge to the severity of the sentence, defendant maintains that sheshould have been sentenced to a term of probation. We are not persuaded, given that defendantconsented to the sentence imposed as part of the plea agreement and she has another criminalconviction. Based upon our review of the record, we find no extraordinary circumstances or anyabuse of discretion warranting a reduction of the sentence in the interest of justice (see People v White, 135 AD3d1241 [2016]; People v Miller,70 AD3d 1120, 1121 [2010], lv denied 14 NY3d 890 [2010]).
Egan Jr., J.P., Lynch, Rose and Aarons, JJ., concur. Ordered that the judgment isaffirmed.