Opinion
108950
03-08-2018
The PEOPLE of the State of New York, Respondent, v. Elijah P. BROWN, Appellant.
Rural Law Center of New York, Castleton (Cynthia Feathers of counsel), for appellant. Chad W. Brown, District Attorney, Johnstown (William G. Berger of counsel), for respondent.
Rural Law Center of New York, Castleton (Cynthia Feathers of counsel), for appellant.
Chad W. Brown, District Attorney, Johnstown (William G. Berger of counsel), for respondent.
Before: McCarthy, J.P., Devine, Clark, Rumsey and Pritzker, JJ.
MEMORANDUM AND ORDER
Appeal from a judgment of the County Court of Fulton County (Hoye, J.), rendered September 30, 2016, convicting defendant upon his plea of guilty of the crime of attempted assault in the first degree.
In satisfaction of a six-count indictment and other pending charges, defendant agreed to plead guilty to the reduced charge of attempted assault in the first degree in exchange for a prison term of 13 years followed by five years of postrelease supervision. The plea agreement also required defendant to waive his right to appeal. Following defendant's plea, County Court sentenced him as a second violent felony offender to the promised prison term. Defendant now appeals.
Inasmuch as County Court's "colloquy was not adequate to ensure that defendant understood the content or consequences of the appeal waiver" ( 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] ; see People v. Ortiz, 153 A.D.3d 1049, 1049, 61 N.Y.S.3d 178 [2017] ), the waiver is invalid and defendant's challenge to the severity of the sentence imposed is not precluded (see People v. Ortiz, 153 A.D.3d at 1049, 61 N.Y.S.3d 178 ). That said, given defendant's criminal history and the circumstances surrounding the crime of conviction, which involved defendant striking the victim in the head with a frying pan, we find no extraordinary circumstances or any abuse of discretion warranting a reduction of the sentence in the interest of justice (see People v. Wolcott, 154 A.D.3d 1001, 1002, 60 N.Y.S.3d 852 [2017] ). Accordingly, the judgment of conviction is affirmed.
ORDERED that the judgment is affirmed.
McCarthy, J.P., Devine, Clark, Rumsey and Pritzker, JJ., concur.