Opinion
01-12-2017
The PEOPLE of the State of New York, Respondent, v. Akim BATES, also known as Gee, Appellant.
G. Scott Walling, Schenectady, for appellant. Robert M. Carney, District Attorney, Schenectady (Tracey A. Brunecz of counsel), for respondent.
G. Scott Walling, Schenectady, for appellant.
Robert M. Carney, District Attorney, Schenectady (Tracey A. Brunecz of counsel), for respondent.
Before: PETERS, P.J., GARRY, ROSE, DEVINE and MULVEY, JJ.
DEVINE, J.Appeal from a judgment of the County Court of Schenectady County (Giardino, J.), rendered June 14, 2013, convicting defendant upon his plea of guilty of the crime of criminal sale of a controlled substance in the third degree.
When this case was previously before this Court, we rejected counsel's Anders brief, withheld decision and assigned new counsel to represent defendant on appeal (139 A.D.3d 1110, 29 N.Y.S.3d 201 [2016] ). New counsel has submitted a brief challenging the validity of defendant's waiver of the right to appeal and the severity of the sentence. Turning to the appeal waiver, the record discloses that defendant executed a written waiver and related to County Court during the plea colloquy that he voluntarily signed it. County Court did not, however, explain the nature and ramifications of the waiver or ensure that defendant had read and understood it (see People v. Lemon, 137 A.D.3d 1422, 1423, 27 N.Y.S.3d 726 [2016], lv. denied 27 N.Y.3d 1135, 39 N.Y.S.3d 116, 61 N.E.3d 515 [2016] ; People v. Williams, 132 A.D.3d 1155, 1155, 20 N.Y.S.3d 176 [2015], lv. denied 27 N.Y.3d 1157, 39 N.Y.S.3d 390, 62 N.E.3d 130 [2016] ). Under these circumstances, we conclude that the waiver was invalid and does not preclude defendant from challenging the severity of the sentence (see People v. Bradshaw, 18 N.Y.3d 257, 264–265, 938 N.Y.S.2d 254, 961 N.E.2d 645 [2011] ; People v. Lemon, 137 A.D.3d at 1423, 27 N.Y.S.3d 726 ).
Upon his plea of guilty to the crime of criminal sale of a controlled substance in the third degree, defendant was sentenced as a second felony offender to five years in prison, to be followed by three years of postrelease supervision. Given defendant's extensive criminal record and his acquiescence to the sentence as part of the plea agreement, we find no extraordinary circumstances nor any abuse of discretion warranting a reduction of the sentence in the interest of justice (see People v. Day, 133 A.D.3d 920, 920, 18 N.Y.S.3d 566 [2015] ; People v. Rabideau, 130 A.D.3d 1094, 1095, 12 N.Y.S.3d 386 [2015] ).
ORDERED that the judgment is affirmed.
PETERS, P.J., GARRY, ROSE and MULVEY, JJ., concur.