| People v Hart |
| 2018 NY Slip Op 02509 [160 AD3d 1137] |
| April 12, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Michael Hart II, Appellant. |
Lisa A. Burgess, Indian Lake, for appellant.
Craig P. Carriero, District Attorney, Malone (Jennifer M. Hollis of counsel), forrespondent.
Appeal from a judgment of the County Court of Franklin County (Main Jr., J.), rendered May3, 2016, convicting defendant upon his plea of guilty of the crime of grand larceny in the fourthdegree.
Defendant pleaded guilty to a single-count indictment charging him with grand larceny in thefourth degree stemming from his participation in the theft of electronics equipment from adepartment store. He orally waived his right to appeal as part of the plea agreement. He wasthereafter sentenced, in accordance with the terms of the plea agreement, to 1 to 3 years in prison.Defendant now appeals, challenging the severity of the sentence.
Initially, defendant is not precluded by his waiver of the right to appeal from raising thisclaim inasmuch as we find the appeal waiver to be invalid. Significantly, County Court did notadvise defendant of the separate and distinct nature of the waiver or question him to ascertainthat he understood its ramifications (seePeople v Thompson, 157 AD3d 1141, 1141 [2018]; People v Farrell, 156 AD3d 1062, 1062-1063 [2017], lvdenied 30 NY3d 1115 [2018]). Notwithstanding the invalidity of the appeal waiver, we donot find that the sentence is either harsh or excessive. Defendant's criminal history discloses anumber of prior convictions and probation violations. In addition, defendant consented to thesentence as part of the plea agreement and could have received a longer prison term if convictedafter trial. In view of the foregoing, we find no extraordinary circumstances or any abuse ofdiscretion warranting a reduction of the sentence in the interest of justice (see People v Ero, 139 AD3d 1248,1250[*2][2016], lv denied 28 NY3d 929 [2016]; People v Lowe, 53 AD3d 982, 983[2008]).
McCarthy, J.P., Egan Jr., Lynch, Mulvey and Pritzker, JJ., concur. Ordered that the judgmentis affirmed.