| People v Blanco |
| 2017 NY Slip Op 08551 [156 AD3d 945] |
| December 7, 2017 |
| Appellate Division, Third Department |
[*1](December 7, 2017)
| The People of the State of New York, Respondent, v GerardoBlanco, Appellant. |
Mischel & Horn, PC, New York City (Richard E. Mischel of counsel), forappellant.
James R. Farrell, District Attorney, Monticello (Richard K. Caister Jr. of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.),rendered January 22, 2015, convicting defendant upon his plea of guilty of the crimes of criminalpossession of a weapon in the second degree and criminal possession of a controlled substance inthe third degree.
In October 2013, defendant was arrested after the police, who had observed him with amarihuana cigarette in a vehicle with a codefendant, found a stolen, loaded .380 calibersemiautomatic pistol hidden under his seat. Defendant was subsequently charged in anindictment with criminal possession of a weapon in the second degree, criminal sale of a firearmin the third degree, criminal possession of marihuana in the fifth degree and criminal possessionof a weapon in the third degree. While released on bail awaiting trial on this indictment,defendant was again arrested in February 2014 after police found him inside a motel room with,among other things, approximately 32 grams of heroin, two digital scales, 900 empty glassineenvelopes and an air gun replica revolver, and he was charged in a superior court informationwith, among other things, criminal possession of a controlled substance in the third degree.Thereafter, pursuant to a plea agreement encompassing both accusatory instruments, defendantwaived his right to appeal and pleaded guilty to criminal possession of a weapon in the seconddegree and criminal possession of a controlled substance in the third degree with a commitmentthat County Court would impose a prison sentence with a range of 3
We agree with defendant that he did not validly waive the right to appeal. County Courtfailed to distinguish "that the right to appeal is separate and distinct from those rightsautomatically forfeited upon a plea of guilty" (People v Lopez, 6 NY3d 248, 256 [2006]; see People v Gonzalez, 138 AD3d1353, 1354 [2016]). Moreover, although defendant executed a written waiver of appeal, hedid not do so in open court, and our review of the record establishes that County Court did not"ensure that defendant understood the content or consequences of the appeal waiver" (People v Williams, 132 AD3d1155, 1155 [2015], lv denied 27 NY3d 1157 [2016]; see People v Lemon, 137 AD3d1422, 1423 [2016], lv denied 27 NY3d 1135 [2016]).
Notwithstanding, we disagree with defendant's contention that the aggregate sentenceimposed was harsh and excessive. Defendant voluntarily pleaded guilty to the crimes at issuewith full knowledge of the sentencing range that would be imposed and that the sentences wereto run concurrently. He was then sentenced in accordance with that agreement. The first chargeinvolved defendant's illegal possession of a loaded, stolen handgun and, despite that arrest, whileout on bail on those charges, defendant then chose to commit another felony by possessing,among other things, a large quantity of heroin and other drug paraphernalia. While mindful thatdefendant has no prior criminal history and expressed remorse for his crimes, in light of theseriousness of the offenses committed, we find no extraordinary circumstances or any abuse ofdiscretion warranting a reduction of the sentence in the interest of justice (see People v Gunn, 144 AD3d1193, 1196 [2016], lv denied 28 NY3d 1145 [2017]; People v Smith, 100 AD3d 1144,1144 [2012]).
Garry, J.P., Rose, Mulvey and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.