| People v Jaggarnine |
| 2018 NY Slip Op 05531 [163 AD3d 1352] |
| July 26, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Issac Jaggarnine, Also Known as Terell Gittens,Appellant. |
Richard V. Manning, Parishville, for appellant.
J. Anthony Jordan, District Attorney, Fort Edward (Joseph A. Frandino of counsel), forrespondent.
Appeal from a judgment of the County Court of Washington County (McKeighan, J.),rendered March 11, 2016, convicting defendant upon his plea of guilty of the crime of criminalpossession of a controlled substance in the third degree.
In satisfaction of a three-count indictment, defendant pleaded guilty to criminal possession ofa controlled substance in the third degree and waived his right to appeal, both orally and inwriting. In accordance with the terms of the plea agreement, he was sentenced to3
Defendant's sole claim is that the sentence is harsh and excessive. Initially, the Peopleconcede, and we agree, that defendant's appeal waiver is invalid inasmuch as County Court didnot advise defendant of the separate and distinct nature of the waiver. He is therefore notprecluded from raising this claim (seePeople v Cadet, 144 AD3d 1335, 1336-1337 [2016], lv denied 28 NY3d 1143[2017], cert denied 583 US —, 138 S Ct 112 [2017]; People v Stevenson, 119 AD3d1156, 1156 [2014]). Nevertheless, we find it to be without merit. Defendant's criminalrecord reflects numerous prior drug felonies and parole violations. In view of this, we findneither extraordinary circumstances nor an abuse of discretion warranting a reduction of thesentence in the interest of justice, particularly given that the sentence imposed was much lessthan the maximum that defendant could have received (see Penal Law§ 70.70 [3] [b] [i]; Peoplev Jones, 155 AD3d 1103, 1106 [2017], lv denied 30 NY3d 1106 [2018]; People v Williams, 145 AD3d1188, 1191 [2016], lv denied 29 NY3d 1002 [2017]). We further note that althoughCounty Court referred to defendant as a second felony offender at sentencing, it actuallysentenced him as a second felony drug offender (compare Penal Law§ 70.06 [3] [b]; [4] [b], with Penal Law § 70.70 [3] [b] [i]).Therefore, the uniform sentence and commitment form and certificate of conviction must beamended accordingly (see People v Williams, 145 AD3d at 1191).
[*2] Garry, P.J., McCarthy, Egan Jr., Lynch and Clark, JJ.,concur. Ordered that the judgment is affirmed, and matter remitted for entry of an amendeduniform sentence and commitment form and an amended certificate of conviction.