| People v Alolafi |
| 2019 NY Slip Op 02180 [170 AD3d 1379] |
| March 21, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Melissa Alolafi, Appellant. |
Donnial K. Hinds, Albany, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
Rumsey, J. Appeal from a judgment of the County Court of Schenectady County(Sypniewski, J.), rendered June 8, 2017, convicting defendant upon her plea of guilty of thecrimes of aggravated unlicensed operation of a motor vehicle in the first degree and driving whileintoxicated.
Defendant waived indictment and agreed to be prosecuted by a superior court informationcharging her with the crimes of aggravated unlicensed operation of a motor vehicle (hereinafterAUO) in the first degree and misdemeanor driving while intoxicated. Pursuant to a negotiatedplea agreement, defendant purportedly waived the right to appeal and pleaded guilty as charged,with the understanding that sentencing would be adjourned and she would be allowed toparticipate in the Schenectady County Drug Treatment Court program. Upon successfulcompletion of the program, it was understood that she would have the opportunity to withdrawher guilty plea to AUO in the first degree and plead guilty to AUO in the third degree, amisdemeanor, and receive two concurrent sentences of three years of probation. It was alsoagreed that if defendant failed to successfully complete the program, she would be sentenced to 1to 3 years in prison. After defendant twice absconded from the program and a bench warrantresulted in her arrest, she was sentenced to 1 to 3 years in prison on the AUO in the first degreeconviction and a jail term of one year for the driving while intoxicated conviction, with the jailterm being merged into the other sentence. Defendant appeals.
We affirm. Preliminarily, we agree with defendant that her appeal waiver was not valid.County Court did not advise her that the right to appeal is separate and distinct from the rightsautomatically forfeited by a guilty plea (see People v Lopez, 6 NY3d 248, 256 [2006]; People v Herbert, 147 AD3d 1208,1208 [2017]). Although defendant executed a written waiver, the court did not adequately ensurethat defendant had read the waiver or understood its contents or ramifications (see People v White, 163 AD3d1358, 1358 [2018], lv denied 32 NY3d 1009 [2018]; People v Williams, 132 AD3d1155, 1155 [2015], lv denied 27 NY3d 1157 [2016]).
Contrary to defendant's contention, County Court did not abuse its discretion by sentencingher to a prison term, rather than continuing her in the drug court program, inasmuch as she failedto comply with the clear and unambiguous terms of the plea agreement by twice absconding fromthe program (see People v Carrasquillo, 309 AD2d 522, 523 [2003], lv denied 1NY3d 569 [2003]). Further, as to defendant's claim that her sentence is harsh and excessive, thesentence was in accordance with the plea agreement and we find no extraordinary circumstancesor abuse of discretion warranting a reduction of the sentence in the interest of justice (seePeople v White, 163 AD3d at 1358-1359; People v March, 122 AD3d 1001, 1003 [2014]).
Garry, P.J., Egan Jr., Lynch and Devine, JJ., concur. Ordered that the judgment isaffirmed.