| People v Brown |
| 2018 NY Slip Op 01514 [159 AD3d 1149] |
| March 8, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v Elijah P.Brown, Appellant. |
Rural Law Center of New York, Castleton (Cynthia Feathers of counsel), for appellant.
Chad W. Brown, District Attorney, Johnstown (William G. Berger of counsel), forrespondent.
Appeal from a judgment of the County Court of Fulton County (Hoye, J.), renderedSeptember 30, 2016, convicting defendant upon his plea of guilty of the crime of attemptedassault in the first degree.
In satisfaction of a six-count indictment and other pending charges, defendant agreed to pleadguilty to the reduced charge of attempted assault in the first degree in exchange for a prison termof 13 years followed by five years of postrelease supervision. The plea agreement also requireddefendant to waive his right to appeal. Following defendant's plea, County Court sentenced himas a second violent felony offender to the promised prison term. Defendant now appeals.
Inasmuch as County Court's "colloquy was not adequate to ensure that defendant understoodthe content or consequences of the appeal waiver" (People v Williams, 132 AD3d 1155, 1155 [2015], lv denied27 NY3d 1157 [2016]; see People vOrtiz, 153 AD3d 1049, 1049 [2017]), the waiver is invalid and defendant's challenge tothe severity of the sentence imposed is not precluded (see People v Ortiz, 153 AD3d at1049). That said, given defendant's criminal history and the circumstances surrounding the crimeof conviction, which involved defendant striking the victim in the head with a frying pan, we findno extraordinary circumstances or any abuse of discretion warranting a reduction of the sentencein the interest of justice (see People vWolcott, 154 AD3d 1001, 1002 [2017]). Accordingly, the judgment of conviction isaffirmed.
McCarthy, J.P., Devine, Clark, Rumsey and Pritzker, JJ., concur. Ordered that the judgmentis affirmed.