Opinion
105819.
01-28-2016
The PEOPLE of the State of New York, Respondent, v. Jeremy JEFFERY, Appellant.
John Ferrara, Monticello, for appellant. James R. Farrell, District Attorney, Monticello (Hannah Rose Prall of counsel), for respondent.
John Ferrara, Monticello, for appellant.
James R. Farrell, District Attorney, Monticello (Hannah Rose Prall of counsel), for respondent.
Opinion
CLARK, J.
Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.), rendered February 5, 2013, convicting defendant upon his plea of guilty of the crime of criminal possession of a weapon in the second degree.
After the vehicle in which defendant was a passenger was stopped by police for a traffic infraction, a search of the vehicle led to the discovery of, among other things, a gun and ammunition. Thereafter, in satisfaction of a pending indictment, defendant pleaded guilty to criminal possession of a weapon in the second degree and waived his right to appeal. He was sentenced, in accordance with the range contemplated by the plea agreement, to a prison term of five years followed by five years of postrelease supervision. Defendant appeals.
Initially, we agree with defendant that the waiver of the right to appeal is not valid. A review of the record reveals that County Court did not “adequately convey that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty” (People v. Mones, 130 A.D.3d 1244, 1244, 13 N.Y.S.3d 686 2015 [internal quotation marks and citations omitted] ). Furthermore, although defendant also executed a written waiver of the right to appeal, the record does not reflect that defendant read and understood the appeal waiver or that it was adequately explained to him prior to signing it (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. Mones, 130 A.D.3d at 1245, 13 N.Y.S.3d 686). As such, defendant's contentions raised on appeal are not precluded by the appeal waiver.
Turning to defendant's challenge to the presentence investigation report (hereinafter PSI), we are unpersuaded that inclusion of information about the criminal conduct of defendant's brother must be redacted from the PSI because it is irrelevant and prejudicial. Inclusion of information in a PSI regarding a defendant's family circumstances and history is permissible (see 7 NYCRR 350.6[b]2 ). Furthermore, defendant challenged the inclusion of such information at sentencing, and there is no indication that County Court improperly attributed the brother's conduct to defendant in imposing the sentence (see generally People v. Judd, 111 A.D.3d 1421, 1423, 975 N.Y.S.2d 312 2013, lv. denied 23 N.Y.3d 1039, 993 N.Y.S.2d 253, 17 N.E.3d 508 2014; People v. Anderson, 184 A.D.2d 922, 923, 584 N.Y.S.2d 946 1992, lv. denied 80 N.Y.2d 901, 588 N.Y.S.2d 826, 602 N.E.2d 234 1992 ). Defendant never requested a hearing regarding the reliability or accuracy of other information in the PSI and, therefore, any claims related thereto are unpreserved (see People v. Stacchini, 108 A.D.3d 866, 867, 969 N.Y.S.2d 218 2013 ). Finally, contrary to defendant's contention, we do not find that the sentence imposed, which was within the parameters contemplated by the plea agreement, is harsh or excessive (see People v. Brodhead, 106 A.D.3d 1337, 1337, 965 N.Y.S.2d 250 2013, lv. denied 22 N.Y.3d 1087, 981 N.Y.S.2d 672, 4 N.E.3d 974 2014 ).
ORDERED that the judgment is affirmed.
McCARTHY, J.P., EGAN JR. and LYNCH, JJ., concur.