| People v Baker |
| 2018 NY Slip Op 00488 [157 AD3d 1164] |
| January 25, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v MichaelBaker, Appellant. |
Rebecca L. Fox, Plattsburgh, for appellant.
Andrew J. Wylie, District Attorney, Plattsburgh (Jaime A. Douthat of counsel), forrespondent.
Appeal from a judgment of the County Court of Clinton County (McGill, J.), rendered April13, 2015, convicting defendant upon his plea of guilty of the crimes of attempted burglary in thesecond degree and stalking in the fourth degree.
In March 2013, defendant became involved in a romantic relationship with the victim, andthe two subsequently shared a residence. The relationship deteriorated following an aggressivesexual encounter that frightened the victim. In March 2014, the victim packed up defendant'sbelongings and he moved out. Unable to accept the breakup, defendant proceeded to harass thevictim by calling, texting and emailing her hundreds of times and appearing at public placeswhere he knew he would see her. In May 2014, after an unsuccessful attempt to talk to the victimwhile she was out with friends, defendant went to her residence, entered the garage and tried toget inside. He was arrested, and a stay away order of protection was issued in favor of the victim.Defendant soon violated the order by attempting to have contact with the victim through a thirdparty. As a result of his actions, he was charged in a 16-count indictment with variouscrimes.[FN*] In satisfactionthereof, he pleaded guilty to attempted burglary in the second degree and stalking in the fourthdegree and waived his right to appeal both orally and in writing. Under the terms of the pleaagreement, he agreed to leave sentencing to the discretion of County Court, but was advised thathe could [*2]receive a maximum sentence of seven years inprison on the attempted burglary conviction. County Court ultimately sentenced defendant to fiveyears in prison and three years of postrelease supervision on the attempted burglary convictionand one year in jail on the stalking conviction, the sentences to run concurrently. He nowappeals.
Defendant's sole contention is that the sentence is harsh and excessive. Initially, the Peopleconcede and we agree that defendant's appeal waiver was invalid. The record does not disclosethat County Court fully advised defendant of the consequences of the waiver or that defendantunderstood them (see People v JosephPP., 153 AD3d 970, 971 [2017]). Although defendant's challenge to the severity of thesentence is thus not precluded by the waiver, we find his claim to be unavailing. Defendantengaged in a persistent pattern of intimidating behavior that frightened the victim for monthsafter she ended their relationship and urged him to stop contacting her. Notwithstanding his lackof a significant criminal record, defendant violated a previous order of protection issued inanother case and continued to engage in similar conduct by continually violating the order ofprotection that was issued in favor of the victim. In view of the foregoing, and considering that asentencing commitment was not made part of the plea agreement, we do not find an abuse ofdiscretion or any extraordinary circumstances warranting a reduction of the sentence in theinterest of justice (see People v Beach, 306 AD2d 753, 754 [2003]; see also People v Womack, 143 AD3d1171, 1174 [2016], lv denied 28 NY3d 1151 [2017]).
Garry, P.J., Egan Jr., Devine, Clark and Mulvey, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Defendant subsequently violatedthe order of protection a second time and pleaded guilty to criminal contempt in the seconddegree in connection with this violation.