| People v Farrell |
| 2017 NY Slip Op 08758 [156 AD3d 1062] |
| December 14, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v MichaelFarrell, Appellant. |
Adam H. Van Buskirk, Chateaugay, for appellant.
Craig P. Carriero, District Attorney, Malone (Jennifer M. Hollis of counsel), forrespondent.
Appeal from an amended judgment of the County Court of Franklin County (Main Jr., J.),rendered June 6, 2016, convicting defendant upon his plea of guilty of the crime of attemptedpromoting prison contraband in the first degree.
While incarcerated in a state correctional facility, defendant was charged in an indictmentwith promoting prison contraband in the first degree, a class D felony. He pleaded guilty to thischarge, orally waived his right to appeal and admitted to a prior felony conviction. As part of theplea agreement, County Court promised to impose an indeterminate sentence that was no greaterthan 22 to 44 months in prison. In accordance therewith, County Court sentenced defendant as asecond felony offender to 22 to 44 months in prison, to run consecutively to the sentence that hewas then serving. Subsequently, however, it was revealed that the sentence was illegal because ithad a maximum indeterminate term of 44 months, which was less than the maximum that mustbe imposed on a second felony offender convicted of a class D felony—at least four yearsbut not greater than seven years (see Penal Law § 70.06 [3] [d]).Consequently, with defendant's consent, County Court adjusted the plea, by substituting thecharge of attempted promoting prison contraband in the first degree, a class E felony, andimposed the original sentence. Defendant appeals.
Defendant's sole contention is that the sentence is harsh and excessive. Preliminarily, we notethat defendant is not precluded from raising this claim by his waiver of the right to appeal as wefind that it is invalid due to County Court's failure to advise defendant of the separate and distinctnature of the waiver or ascertain that he fully understood its ramifications (see People v Rock, 151 AD3d1383, 1384 [2017], lv denied 30 NY3d 953 [2017]; People v [*2]Woods, 150 AD3d 1560, 1562 [2017], lv denied29 NY3d 1095 [2017]). However, we find defendant's argument to be unpersuasive. Defendanthas a significant criminal record and could have potentially been sentenced as a persistent felonyoffender if convicted after trial. Moreover, he consented to the 22- to 44-month sentence as partof the plea agreement. In view of the foregoing, we find no extraordinary circumstances or anyabuse of discretion warranting a reduction of the sentence in the interest of justice (see People v Williams, 101 AD3d1174, 1174-1175 [2012]; People vHeadley, 21 AD3d 1183, 1184 [2005]).
Egan Jr., J.P., Lynch, Aarons, Rumsey and Pritzker, JJ., concur. Ordered that the amendedjudgment is affirmed.