| People v Morrow |
| 2018 NY Slip Op 05267 [163 AD3d 1265] |
| July 13, 2018 |
| Appellate Division, Third Department |
[*1](July 13, 2018)
| The People of the State of New York,Respondent, v Maurice D. Morrow, Appellant. |
Robert A. Regan, Glens Falls, for appellant.
J. Anthony Jordan, District Attorney, Fort Edward (Joseph A. Frandino of counsel), forrespondent.
Upon the Court's own motion, it is ordered that the memorandum and order decided andentered June 28, 2018 (162 AD3d 1406) is vacated, and the attached memorandum and order issubstituted therefor.
Appeal from a judgment of the County Court of Washington County (McKeighan, J.),rendered February 26, 2015, convicting defendant upon his plea of guilty of the crime of criminalpossession of a controlled substance in the third degree.
In satisfaction of a two-count indictment, defendant pleaded guilty to criminal possession ofa controlled substance in the third degree and waived his right to appeal. In accordance with theterms of the plea agreement, defendant was sentenced to seven years in prison followed by threeyears of postrelease supervision. He now appeals.
We affirm. Initially, the People concede, and we agree, that defendant's waiver of the right toappeal is invalid inasmuch as County Court failed to advise defendant that the right to appeal isseparate and distinct from the rights automatically forfeited by pleading guilty (see People v Treceno, 160 AD3d1216, 1216 [2018]; People vLane, 159 AD3d 1195, 1195 [2018]; People v Walley, 150 AD3d 1334, 1334-1335 [2017]; People v Cadet, 144 AD3d 1335,1336-1337 [2016], lv denied 28 NY3d 1143 [2017], cert denied 583 US &mdash,138 S Ct 112 [2017]). As such, defendant's challenge to the sentence as harsh and excessive isnot precluded. Nevertheless, we find no basis to disturb the agreed-upon sentence that wasimposed. In this regard, defendant's sentence is well within the permissible statutory range(see Penal Law § 70.70 [3] [b] [i]), and our review of the record reveals noextraordinary circumstances or abuse of discretion to warrant a reduction of the sentence in theinterest of justice (see People vWhalen, 101 AD3d 1167, 1169 [2012], lv denied 20 NY3d 1105[2013]).
[*2] Lastly, we note that, although CountyCourt referred to defendant as a second felony offender at sentencing, the court actuallysentenced defendant as a second felony drug offender (compare Penal Law§ 70.06 [3] [b]; [4] [b], with Penal Law § 70.70 [3] [b] [i]).Accordingly, an amended uniform sentence and commitment form must be prepared that reflectshis status as a second felony drug offender (see People v Williams, 145 AD3d 1188, 1191 [2016], lvdenied 29 NY3d 1002 [2017]; People v Labaff, 127 AD3d 1471, 1472 [2015], lv denied26 NY3d 931 [2015]).
Garry, P.J., McCarthy, Egan Jr., Lynch and Devine, JJ., concur. Ordered that the judgment isaffirmed, and matter remitted for entry of an amended uniform sentence and commitmentform.