Opinion
109797
04-18-2019
The PEOPLE of the State of New York, Respondent, v. Brandon COOK, Appellant.
G. Scott Walling, Slingerlands, for appellant. Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.
G. Scott Walling, Slingerlands, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.
Before: Egan Jr., J.P., Lynch, Clark, Aarons and Rumsey, JJ.
MEMORANDUM AND ORDERIn October 2016, to "resolve any potential charges related to ... matters involving the victim," defendant pleaded guilty to attempted incest in the first degree and agreed to waive his right to appeal. In accordance with the terms of the plea agreement, County Court sentenced defendant to four years in prison, followed by 13 years of postrelease supervision. Defendant appeals, and we affirm.
We agree with defendant that his waiver of the right to appeal was invalid. County Court did not explain the separate and distinct nature of the waiver or make any effort to determine whether defendant understood the implications of giving up his right to appeal (see People v. McClain, 161 A.D.3d 1457, 1457–1458, 77 N.Y.S.3d 752 [2018] ; People v. Woods, 150 A.D.3d 1560, 1562, 55 N.Y.S.3d 780 [2017], lv denied 29 N.Y.3d 1095, 63 N.Y.S.3d 12, 85 N.E.3d 107 [2017] ). Instead, County Court merely asked whether defendant understood that the People were requiring him to give up his right to appeal. Additionally, although defendant signed a written waiver of appeal, "County Court did not verify that defendant had read and understood the written appeal waiver or discussed it with counsel" ( People v. Brewster, 161 A.D.3d 1309, 1310, 77 N.Y.S.3d 205 [2018] ; see People v. Pittman, 166 A.D.3d 1243, 1244, 86 N.Y.S.3d 347 [2018], lv denied 32 N.Y.3d 1176, ––– N.Y.S.3d ––––, ––– N.E.3d –––– [2019] ). Given the invalidity of the appeal waiver, defendant's challenge to the severity of the sentence imposed upon him is properly before us for review (see People v. Nealon, 166 A.D.3d 1225, 1225–1226, 88 N.Y.S.3d 283 [2018] ; People v. Lane, 159 A.D.3d 1195, 1195, 69 N.Y.S.3d 842 [2018] ). Nonetheless, we find no extraordinary circumstances or abuse of discretion warranting a reduction of the agreed-upon sentence in the interest of justice (see People v. Morrow, 163 A.D.3d 1265, 1266, 80 N.Y.S.3d 559 [2018] ; People v. Gonzalez, 162 A.D.3d 1403, 1404, 75 N.Y.S.3d 924 [2018] ).
Egan Jr., J.P., Lynch, Clark, Aarons and Rumsey, JJ., concur.
ORDERED that the judgment is affirmed.