| People v Haenelt |
| 2018 NY Slip Op 03879 [161 AD3d 1489] |
| May 31, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Edwin Haenelt, Appellant. |
Samantha E. Koolen, Albany, for appellant.
James R. Farrell, District Attorney, Monticello (Meagan K. Galligan of counsel), forrespondent.
Clark, J. Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.),rendered April 1, 2015, convicting defendant upon his plea of guilty of the crime of burglary inthe second degree.
In satisfaction of a six-count indictment, defendant pleaded guilty to burglary in the seconddegree and purportedly waived his right to appeal. County Court thereafter sentenced him, as asecond felony offender, to five years in prison, to be followed by five years of postreleasesupervision, with the prison sentence to run consecutively to a prison sentence he was alreadyserving. Defendant now appeals.
Initially, we agree with defendant that his appeal waiver was not valid. County Court failedto distinguish the right to appeal from those rights automatically forfeited by a guilty plea (see People v Lopez, 6 NY3d 248,256 [2006]; People v Blanco, 156AD3d 945, 946 [2017]). Further, although defendant executed a written waiver, CountyCourt did not "ensure that defendant understood the content or consequences of the appealwaiver" (People v Williams, 132AD3d 1155, 1155 [2015], lv denied 27 NY3d 1157 [2016]; accord People v Cotto, 156 AD3d1063, 1063 [2017]).
Defendant also contends that his guilty plea was not knowing, intelligent and voluntarybecause County Court failed to inform him of the constitutional rights he was giving up by [*2]pleading guilty. This contention is not preserved for our review,inasmuch as the record does not reflect that he made an appropriate postallocution motion (see People v Conceicao, 26 NY3d375, 382 [2015]; People vEvans, 156 AD3d 1246, 1246-1247 [2017]; People v Bond, 146 AD3d 1155, 1156 [2017], lv denied 29NY3d 1076 [2017]). Moreover, defendant did not make any statements during the plea allocutionthat cast doubt on his guilt or otherwise called into question the voluntariness of his plea, so as totrigger the narrow exception to the preservation requirement (see People v Duvall, 157 AD3d 1060, 1061 [2018]; People vEvans, 156 AD3d at 1247). In any event, we would find that County Court adequatelyadvised defendant of the constitutional rights he was forfeiting by pleading guilty and thatdefendant affirmed his understanding thereof (see People v Duvall, 157 AD3d at 1061;People v Bond, 146 AD3d at 1156). Lastly, we are unpersuaded by defendant's contentionthat his sentence is harsh and excessive because County Court directed that his prison term runconsecutively to, rather than concurrently with, a prison term that he was already serving. Thesentence was in accordance with the plea agreement, and our review of the record reveals noabuse of discretion or extraordinary circumstances warranting a reduction of the sentence in theinterest of justice (see People vWolcott, 154 AD3d 1001, 1002 [2017]; People v Eickhoff, 151 AD3d 1120, 1120-1121 [2017], lvdenied 29 NY3d 1126 [2017]).
McCarthy, J.P., Devine, Aarons and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.