| People v Alexander |
| 2021 NY Slip Op 03218 [194 AD3d 1261] |
| May 20, 2021 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Ramel S. Alexander, Appellant. |
Sandra M. Colatosti, Albany, for appellant.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.
Egan Jr., J. Appeal from a judgment of the County Court of Albany County (Carter, J.),rendered March 20, 2018, convicting defendant upon his pleas of guilty of the crimes of drivingwhile intoxicated and attempted criminal possession of a controlled substance in the thirddegree.
Defendant waived indictment and agreed to be prosecuted pursuant to a superior courtinformation charging him with one count of attempted criminal possession of a controlledsubstance in the third degree with the understanding that he would be sentenced to a prison termof 1
Prior to sentencing, defendant was arrested and charged with driving while intoxicated as afelony. As a result, the People sought an enhancement of defendant's sentence upon his drugconviction and offered to permit defendant to plead guilty to driving while intoxicated inexchange for a prison term of 1 to 3 years (with a three-year conditional discharge)—suchsentence to run concurrently with the three-year enhanced prison term sought with respect todefendant's drug conviction. That plea agreement also required defendant to waive his right toappeal.
After being advised of and declining his right to a hearing on the proposed sentencingenhancement (see People v Outley, 80 NY2d 702 [1993]), defendant waived indictment,agreed to be prosecuted pursuant to a superior court information charging him with one count ofdriving while intoxicated and pleaded guilty to the charged crime. County Court thereaftersentenced defendant to a prison term of three years upon his conviction of attempted criminalpossession of a controlled substance in the third degree (followed by two years of postreleasesupervision) and to a prison term of 1 to 3 years upon his conviction of driving while intoxicated(with a three-year conditional discharge)—said sentences to run concurrently. This appealensued.
The People concede—and our review of the record confirms—that defendant'srespective waivers of the right to appeal were invalid, as County Court failed to distinguish thewaiver of the right to appeal from the other rights that defendant was forfeiting by pleading guiltyand, further, neither adequately explained the nature of the waiver nor ascertained defendant'sunderstanding of the ramifications thereof (see People v Williams, 190 AD3d 1192, 1193 [2021]; People v Alexander, 174 AD3d1068, 1068 [2019], lv denied 34 NY3d 949 [2019]). Such deficiencies were notcured by defendant's execution of written waivers of appeal, as County Court "did not verify thatdefendant had read and understood the written appeal waiver[*2][s] or discussed [them] with counsel" (People v Alexander,174 AD3d at 1068 [internal quotation marks and citations omitted]; see People vWilliams, 190 AD3d at 1193).
As for defendant's challenge to the enhanced sentence, a sentencing court may not impose anenhanced sentence unless, as relevant here, " 'it has informed the defendant of [the]specific conditions that the defendant must abide by or risk such enhancement' " (People v Hunter, 173 AD3d 1249,1250 [2019], lv denied 34 NY3d 933 [2019], quoting People v Tole, 119 AD3d 982, 984 [2014]). There is no dispute thatCounty Court fulfilled its obligation in this regard, as the court specifically informed defendantthat, in order for the court to honor the plea agreement, defendant could not "get arrested again"prior to sentencing (compare People vBlanford, 179 AD3d 1388, 1393 [2020], lv denied 35 NY3d 968 [2020]).Additionally, the record reflects that defendant did not object to the enhanced sentence, request ahearing or move to withdraw his plea upon this ground, thereby failing to preserve this issue forour review (see People v Bushey,186 AD3d 1835, 1835 [2020], lv denied 36 NY3d 928 [2020]; People v Benninger, 173 AD3d1568, 1569 [2019], lv denied 34 NY3d 978 [2019]; People v Smith, 162 AD3d 1408,1409 [2018]). Indeed, defendant expressly declined County Court's offer of a hearing on thispoint—opting instead to accept the People's proposed resolution and proceed to sentencing(see People v Derrig, 175 AD3d1675, 1675-1676 [2019], lv denied 34 NY3d 1127 [2020]). Thus, contrary todefendant's present assertion, he was in fact provided with an opportunity to contest the validityof his postplea arrest, and we decline his request to take corrective action in the interest ofjustice.
Finally, although defendant's challenge to the sentences imposed as harsh and excessive isnot precluded (see People v Williams, 190 AD3d at 1193), in light of defendant'sextensive criminal history and the favorable treatment that he received in the form of concurrentsentences, we find no extraordinary circumstances or abuse of discretion warranting a reductionof the sentences imposed in the interest of justice (see generally People v Suddard, 164 AD3d 950, 951 [2018], lvdenied 32 NY3d 1178 [2019]). Defendant's remaining arguments, to the extent notspecifically addressed, have been examined and found to be lacking in merit.
Garry, P.J., Aarons, Pritzker and Reynolds Fitzgerald, JJ., concur. Ordered that the judgmentis affirmed.