People v Grimes

2021 NY Slip Op 03876 [195 AD3d 1245]

June 17, 2021

Appellate Division, Third Department

As corrected through Wednesday, August 4, 2021

[*1]

The People of the State of New York,Respondent, v Israel Grimes, Also Known as Izzy,Appellant.

G. Scott Walling, Slingerlands, for appellant.

Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.

Appeal from a judgment of the Supreme Court (Hogan, J.), rendered May 14, 2018 inSchenectady County, convicting defendant upon his plea of guilty of the crime of attemptedcriminal sale of a controlled substance in the third degree.

In satisfaction of a four-count indictment relating to two cocaine sales and a pending drugpossession charge, defendant pleaded guilty to attempted criminal sale of a controlled substancein the third degree and purportedly waived the right to appeal. Defendant was to be sentenced, asa second felony drug offender with a prior violent felony conviction, to 41/2 yearsin prison to be followed by three years of postrelease supervision. Supreme Court warned himthat it would not be bound by its sentencing commitment if, among other things, he had anydisciplinary problems in jail while awaiting sentencing. Defendant's misbehavior while jailedthen resulted in a new charge of assault in the second degree. In order to resolve the pendingassault charge and avoid the possibility of a heavier enhanced sentence, defendant agreed towaive an Outley hearing on the alleged violation of the plea agreement and consent to anenhanced prison term of 51/2 years. Supreme Court imposed the agreed-uponsentence as enhanced, and defendant appeals.

We affirm. The People do not dispute, and we find, that defendant's appeal waiver wasinvalid (see People v Figueroa, 192AD3d 1269, 1269-1270 [2021]; People v Anderson, 184 AD3d 1020, 1020-1021 [2020], lvdenied 35 NY3d 1064 [2020]). As for the merits of defendant's claim that the enhancedsentence is harsh and excessive, that sentence was agreed to by him, was well below themaximum permitted for an offender in his position, and allowed him to avoid sentencingexposure on the pending assault charge (see Penal Law § 70.70 [4] [b] [ii]).In view of the foregoing, as well as defendant's prior criminal history, we perceive noextraordinary circumstances or abuse of discretion that would warrant the modification of thesentence in the interest of justice (seePeople v Avera, 192 AD3d 1382, 1383 [2021]; People v Gamble, 190 AD3d 1022, 1023 [2021], lv denied36 NY3d 1098 [2021]).

Garry, P.J., Lynch, Clark, Aarons and Colangelo, JJ., concur. Ordered that the judgment isaffirmed.