| People v Warren |
| 2018 NY Slip Op 02835 [160 AD3d 1286] |
| April 26, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Eric J. Warren, Appellant. |
Rebecca L. Fox, Plattsburgh, for appellant.
Andrew J. Wylie, District Attorney, Plattsburgh (Jamie A. Douthat of counsel), forrespondent.
Pritzker, J. Appeal from a judgment of the County Court of Clinton County (McGill, J.),rendered September 5, 2014, convicting defendant upon his plea of guilty of the crime ofcriminal possession of stolen property in the third degree.
Defendant waived indictment and pleaded guilty to criminal possession of stolen property inthe third degree pursuant to a plea agreement that required a waiver of appeal. Consistent withthe agreement, defendant was sentenced, as an admitted second felony offender, to a prison termof 2 to 4 years and now appeals.
We affirm. Initially, as the People concede, defendant's appeal waiver was invalid, as therecord fails to reflect, among other deficiencies, that County Court advised him that the waiver ofappeal was separate and distinct from the trial-related rights that were automatically forfeited byhis guilty plea or that defendant understood its ramifications (see People v Lopez, 6 NY3d 248, 256 [2006]; People v Loika, 153 AD3d 1516,1517 [2017]). While the record contains a signed written waiver of appeal, there is no mention ofit on the record and the circumstances under which it was signed are not reflected (see People v Cotto, 156 AD3d1063, 1063 [2017]; cf. People vLester, 141 AD3d 951, 953 [2016], lv denied 28 NY3d 1185 [2017]).Accordingly, defendant's challenge to the agreed-upon sentence as harsh and excessive is notprecluded (see People v Cox, 146AD3d 1154, 1155 [2017]), although we find it to be unavailing. To that end, defendant's pleastemmed from his possession of numerous items stolen from different homes, and he has anextensive [*2]felony history with multiple prison terms and parolerevocations. County Court considered all of the relevant sentencing factors, and we discern noabuse of discretion or extraordinary circumstances warranting a reduction of the sentence in theinterest of justice (see People vMcFadden, 127 AD3d 1340, 1341 [2015], lv denied 26 NY3d 932 [2015]; People v Vallance, 137 AD3d1327, 1327-1328 [2016]). We note that the negotiated sentence was the minimumpermissible prison sentence (see Penal Law § 70.06 [3] [d]; [4] [b]) and,while defendant argues that defense counsel was ineffective for "fail[ing] to argue for a morefavorable sentence," namely, parole supervision under CPL 410.91, this claim was not preservedby an appropriate postallocution motion and the record does not establish his eligibility therefor(see People v Williams, 145 AD3d1188, 1191 [2016], lv denied 29 NY3d 1002 [2017]). To the extent that this claimimplicates matters outside the record regarding the plea negotiations, it is more appropriatelyconsidered in a motion pursuant to CPL article 440 (see People v Hayden, 155 AD3d 1309, 1311 [2017]).
McCarthy, J.P., Devine, Mulvey and Aarons, JJ., concur. Ordered that the judgment isaffirmed.