| People v Pagan |
| 2021 NY Slip Op 03219 [194 AD3d 1263] |
| May 20, 2021 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Raul B. Pagan, Appellant. |
David E. Woodin, Catskill, for appellant.
Joseph Stanzione, District Attorney, Catskill (Danielle D. McIntosh of counsel), forrespondent.
Appeal from a judgment of the County Court of Greene County (Wilhem, J.), renderedOctober 17, 2017, convicting defendant upon his plea of guilty of the crime of criminalpossession of a controlled substance in the second degree.
Defendant waived indictment and agreed to be prosecuted by a superior court informationcharging him with criminal possession of a controlled substance in the second degree, criminalpossession of a controlled substance in the third degree and criminally using drug paraphernaliain the second degree. In full satisfaction of the superior court information, defendant agreed toplead guilty to criminal possession of a controlled substance in the second degree andpurportedly waived the right to appeal. Consistent with the terms of the plea agreement, CountyCourt sentenced defendant to five years in prison, to be followed by five years of postreleasesupervision. Defendant appeals.
Defendant initially contends that his waiver of appeal was invalid, and we agree. A review ofthe record reveals that County Court failed to adequately explain the significance of an appealwaiver or convey that it is "separate and distinct from those rights automatically forfeited upon aplea of guilty" (People v Lopez, 6NY3d 248, 256 [2006]; see Peoplev Sanders, 25 NY3d 337, 340-341 [2015]; People v Meddaugh, 150 AD3d 1545, 1546 [2017]). Further,although defendant acknowledged in open court that he had signed a written waiver of appealduring the plea proceedings, no inquiry was made as to whether he had read and understood it(see People v Wilson, 163 AD3d1049, 1050 [2018]; People vLemon, 137 AD3d 1422, 1423 [2016], lv denied 27 NY3d 1135 [2016]; People v Rabideau, 130 AD3d1094, 1095 [2015]). Inasmuch as defendant's understanding of the appeal waiver is notreflected on the face of the record, it is invalid, and defendant is not precluded from challengingthe severity of the sentence (see People v Lopez, 6 NY3d at 257; People v Levielle, 161 AD3d1391, 1392 [2018]; People vWright, 149 AD3d 1417, 1418 [2017]).
Nevertheless, defendant's claim that the sentence was harsh and excessive is unavailing.Notwithstanding defendant's age, health issues and limited criminal history, County Courtimposed the sentence that defendant expressly agreed to receive in exchange for his guilty plea toa serious crime. Consequently, we find no extraordinary circumstances or abuse of discretionwarranting a reduction of the sentence in the interest of justice (see People v Meddaugh,150 AD3d at 1548; People v Ladieu,105 AD3d 1265, 1266 [2013], lv denied 21 NY3d 1017 [2013]; People v Brown, 35 AD3d 957,957 [2006], lv denied 8 NY3d 944 [2007]).
Garry, P.J., Egan Jr., Lynch, Clark and Colangelo, JJ., concur. Ordered that the judgment isaffirmed.