| People v Levielle |
| 2018 NY Slip Op 03568 [161 AD3d 1391] |
| May 17, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Mark Levielle, Appellant. |
Thomas F. Garner, Middleburgh, for appellant.
Robert M. Carney, District Attorney, Schenectady (Tracey A. Brunecz of counsel), forrespondent.
Appeal from a judgment of the County Court of Schenectady County (Loyola, J.), renderedJune 10, 2016, convicting defendant upon his plea of guilty of the crime of burglary in the thirddegree.
Following an investigation, defendant was charged in a two-count indictment with burglaryin the third degree and grand larceny in the third degree. Pursuant to a plea agreement, defendantpleaded guilty to burglary in the third degree in full satisfaction of the charges and also executeda waiver of the right to appeal. Consistent with the terms of the plea agreement, County Courtsentenced him, as a second felony offender, to a prison term of 3 to 6 years. Defendant nowappeals, and we affirm.
Initially, we agree with defendant that he did not validly waive the right to appeal. CountyCourt failed to explain to defendant "that the right to appeal is separate and distinct from thoserights automatically forfeited upon a plea of guilty" (People v Lopez, 6 NY3d 248, 256 [2006]; see People v Meddaugh, 150 AD3d1545, 1546 [2017]). Although the plea colloquy reflects that defendant purportedly executeda written waiver of appeal and "file[d the waiver] with the clerk of the [c]ourt," "the record doesnot reflect that he read it, discussed it with counsel or understood it, and it is not in the record onappeal" (People v Wright, 149AD3d 1417, 1417 [2017]; seePeople v Larock, 139 AD3d 1241, 1242 [2016], lv denied 28 NY3d 932 [2016]).Accordingly, inasmuch as the record does not establish that defendant appreciated theconsequences of the appeal waiver, it is invalid, and he is not precluded from challenging theseverity of his sentence (see People v Lopez, 6 NY3d at 257; People v Barnes, 150 AD3d 1338,[*2]1338 [2017]).
Nevertheless, defendant's claim that his agreed-upon sentence is harsh and excessive isunavailing. Given defendant's extensive criminal record and his agreement to the sentence as partof the negotiated plea agreement in full satisfaction of the indictment, we find no extraordinarycircumstances or any abuse of discretion warranting a reduction of the sentence in the interest ofjustice (see People v Torres, 81AD3d 995, 995 [2011]; People vJohnson, 12 AD3d 941, 941 [2004]; People v Rose, 189 AD2d 924, 924[1993]).
Garry, P.J., Egan Jr., Devine, Mulvey and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.