| People v Smith |
| 2022 NY Slip Op 05352 [208 AD3d 1538] |
| September 29, 2022 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Christopher Smith, Appellant. |
Del Atwell, East Hampton, for appellant.
P. David Soares, District Attorney, Albany (Jonathan P. Catania of counsel), forrespondent.
Reynolds Fitzgerald, J. Appeal from a judgment of the County Court of AlbanyCounty (William A. Carter, J.), rendered August 22, 2018, convicting defendant upon hisplea of guilty of the crime of arson in the second degree.
Defendant was charged by indictment with arson in the second degree and thereafteragreed to plead guilty to the charged crime with the understanding that he would besentenced to a prison term of no less than five years and no more than 10years—followed by three years of postrelease supervision. The plea agreementalso required defendant to waive his right to appeal. Defendant pleaded guilty inconformity with the plea agreement, and County Court subsequently sentenced defendantto a prison term of seven years followed by three years of postrelease supervision. Thisappeal ensued.
We affirm. The People concede—and our review of the recordconfirms—that defendant's waiver of the right to appeal is invalid, as CountyCourt, among other things, "neither adequately explained the nature of the waiver norascertained defendant's understanding of the ramifications thereof" (People v Alexander, 194 AD3d1261, 1262 [3d Dept 2021], lv denied 37 NY3d 1094 [2021]; see People v Boyd, 206 AD3d1350, 1351 [3d Dept 2022], lv denied 38 NY3d 1149 [2022]; People v Lilliard, 206 AD3d1241, 1242 [3d Dept 2022]). As a result, defendant's challenge to the perceivedseverity of his sentence is not precluded (see People v Davis, 199 AD3d 1123, 1124-1125 [3d Dept2021], lv denied 37 NY3d 1160 [2022]). That said, we do not find the sentenceimposed to be unduly harsh or severe (see CPL 470.15 [6] [b]). The sentenceimposed was well within both the permissible statutory range (see Penal Law§§ 70.02 [1] [a]; [3] [a]; 150.15) and the sentencing parameters setforth by County Court in the context of the plea agreement. Contrary to defendant'sassertion, the mere fact that County Court ultimately did not impose the minimum termof imprisonment desired by defendant at the time of sentencing did not result in theimposition of an "enhanced" sentence. Defendant's remaining arguments on this point, tothe extent not specifically addressed, have been examined and found to be lacking inmerit.
Egan Jr., J.P., Pritzker, Ceresia and Fisher, JJ., concur. Ordered that the judgment isaffirmed.