Opinion
108613
03-15-2018
The PEOPLE of the State of New York, Respondent, v. Rex LANE, Appellant.
G. Scott Walling, Slingerlands, for appellant. J. Anthony Jordan, District Attorney, Fort Edward (Joseph A. Frandino of counsel), for respondent.
G. Scott Walling, Slingerlands, for appellant.
J. Anthony Jordan, District Attorney, Fort Edward (Joseph A. Frandino of counsel), for respondent.
Before: Garry, P.J., McCarthy, Egan Jr., Devine and Clark, JJ.
MEMORANDUM AND ORDERAppeal from a judgment of the County Court of Washington County (McKeighan, J.), rendered July 24, 2015, convicting defendant upon his plea of guilty of the crime of criminal sale of a controlled substance in the fourth degree.
In satisfaction of a multicount indictment, defendant pleaded guilty to criminal sale of a controlled substance in the fourth degree and waived his right to appeal, both orally and in writing. In accordance with the terms of the plea agreement, he was sentenced as a second felony offender to five years in prison and three years of postrelease supervision. Defendant now appeals.
Defendant's sole claim is that the sentence is harsh and excessive. As a preliminary matter, the People concede and we agree that defendant's waiver of the right to appeal is invalid inasmuch as County Court did not advise defendant that his appeal rights were separate and distinct from the rights automatically forfeited by his guilty plea (see People v. Metayeo, 155 A.D.3d 1239, 1240, 64 N.Y.S.3d 400 [2017] ; People v. Roshia, 133 A.D.3d 1029, 1030, 19 N.Y.S.3d 373 [2015], affd 28 N.Y.3d 989, 41 N.Y.S.3d 208, 63 N.E.3d 1152 [2016] ). Although defendant is not precluded by the waiver from challenging the severity of the sentence, we find his claim to be without merit. Defendant has a lengthy criminal record and was on probation at the time that he committed the crime to which he pleaded guilty. Moreover, he consented to the sentence as part of the plea agreement and could have received substantially more prison time if convicted after trial of the charges contained in the indictment. In view of the foregoing, we find no extraordinary circumstances or any abuse of discretion warranting a reduction of the sentence in the interest of justice (see People v. O'Brien, 122 A.D.3d 957, 958, 994 N.Y.S.2d 549 [2014] ; People v. Patterson, 119 A.D.3d 1157, 1158–1159, 990 N.Y.S.2d 319 [2014], lvs denied 24 N.Y.3d 1042, 1046, 998 N.Y.S.2d 316, 23 N.E.3d 159 [2014] ).
ORDERED that the judgment is affirmed.
Garry, P.J., McCarthy, Egan Jr., Devine and Clark, JJ., concur.