| People v Lenahan |
| 2022 NY Slip Op 00476 [201 AD3d 1255] |
| January 27, 2022 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Thomas Lenahan, Appellant. |
Aaron A. Louridas, Delmar, for appellant.
Joseph Stanzione, District Attorney, Catskill (Danielle D. McIntosh of counsel), forrespondent.
Appeal from a judgment of the County Court of Greene County (Wilhelm, J.), renderedOctober 16, 2018, convicting defendant upon his plea of guilty of the crimes of promoting prisoncontraband in the first degree and attempted criminal sale of a controlled substance in the fourthdegree.
Pursuant to a plea agreement, defendant pleaded guilty to promoting prison contraband in thefirst degree and attempted criminal sale of a controlled substance in the fourth degree. He wasthereafter sentenced to a prison term of four years, followed by two years of postreleasesupervision, for his attempted criminal sale conviction and to a concurrent prison term of2
We affirm. Initially, we agree with defendant's contention that his appeal waiver is invalid.Our review of the record reveals that County Court's abbreviated explanation of the waiver of theright to appeal failed to convey the significance of the appeal waiver and that it is "separate anddistinct from those rights automatically forfeited upon a plea of guilty" (People v Lopez, 6 NY3d 248, 256[2006]; see People v Pagan, 194AD3d 1263, 1264 [2021]; People vMcKoy, 175 AD3d 1616, 1617 [2019], lv denied 34 NY3d 1018 [2019]; People v Latifi, 171 AD3d 1351,1351 [2019]). Although defendant executed a written appeal waiver, the court made no inquiry asto whether he had read it or understood it (see People v Williams, 190 AD3d 1192, 1193 [2021]; People v Kehn, 173 AD3d 1564,1564 [2019]). As defendant's understanding of the appeal waiver is not reflected on the face ofthe record, it is invalid and, thus, he is not precluded from challenging the severity of hissentence (see People v Pagan, 194 AD3d at 1264; People v Gervasio, 190 AD3d 1190, 1191 [2021]; People vMcKoy, 175 AD3d at 1617; Peoplev Levielle, 161 AD3d 1391, 1392 [2018]; compare People v Bateman, 151 AD3d 1482, 1483-1484 [2017],lv denied 31 NY3d 981 [2018]).
We are nevertheless unpersuaded by defendant's claim that his sentence was harsh andexcessive. Defendant's criminal history is extensive—in fact, he was on parole at the timeof the instant offense—and the sentence imposed, which is below the statutory maximum,was agreed upon as part of his plea. Accordingly, we find no extraordinary circumstances orabuse of discretion warranting a reduction of the sentence in the interest of justice (see People v Barzee, 190 AD3d1016, 1021-1022 [2021], lv denied 36 NY3d 1094 [2021]; People v Lane, 159 AD3d 1195,1195-1196 [2018]; People vIldefonso, 150 AD3d 1388, 1388 [2017], lv denied 30 NY3d 980 [2017]).
Garry, P.J., Clark, Aarons, Reynolds Fitzgerald and Colangelo, JJ., concur. Ordered that thejudgment is affirmed.