People v Braye

2018 NY Slip Op 03779 [161 AD3d 1456]

May 24, 2018

Appellate Division, Third Department

As corrected through Wednesday, June 27, 2018

[*1]

The People of the State of New York,Respondent, v Kevin Braye, Appellant.

Dana L. Salazar, East Greenbush, for appellant.

Robert M. Carney, District Attorney, Schenectady (Jennifer Uhl, Law Intern), forrespondent.

Appeal from a judgment of the County Court of Schenectady County (Loyola, J.), renderedAugust 24, 2015, convicting defendant upon his plea of guilty of the crime of criminal possessionof a controlled substance in the third degree.

Defendant pleaded guilty to criminal possession of a controlled substance in the third degree,in full satisfaction of a six-count indictment, and purportedly waived the right to appeal. Pursuantto the plea agreement, defendant was permitted to participate in a drug court program with theunderstanding that, if he successfully completed the program, he would be sentenced to a periodof probation not to exceed five years. Defendant was further advised that, if he did notsuccessfully complete the program, he would be sentenced, as a second felony offender, to amaximum of seven years in prison, to be followed by 11/2 years of postreleasesupervision.

Prior to completing the drug court program, defendant was arrested and charged with fourdrug-related felonies and he agreed to opt out of the drug court program. County Court thereaftersentenced him, as a second felony offender, to six years in prison, to be followed by11/2 years of postrelease supervision, with the sentence to run concurrently withthe sentence imposed upon the charges that resulted in his opting out of the drug court program.Defendant now appeals.

We agree with defendant that the brief inquiry by County Court (Drago, J.) regarding hisunderstanding of the waiver of the right to appeal was insufficient to establish that defendantappreciated the consequences of the waiver (see People v Davis, 136 AD3d 1220, 1221 [2016], lvdenied 27 NY3d 1068 [2016]; People v Ashlaw, 126 AD3d 1236, 1237 [2015]). While defendantalso executed a written waiver, County Court did not address the written waiver during [*2]the allocution. Accordingly, the appeal waiver was invalid anddefendant is not precluded from challenging the severity of his sentence (see People v Bradshaw, 18 NY3d257, 264-265 [2011]).

We are not persuaded, however, that the sentence, which was within the agreed-upon range,is harsh or excessive. Given defendant's criminal history and continued criminal activity after hisplea, we find no extraordinary circumstances or abuse of discretion warranting a reduction of thesentence in the interest of justice (seePeople v Thompson, 157 AD3d 1141, 1142 [2018]; People v Farrell, 156 AD3d 1062, 1063 [2017], lv denied30 NY3d 1115 [2018]).

Devine, J.P., Mulvey, Aarons, Rumsey and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.