Opinion
2014-11-6
The PEOPLE of the State of New York, Respondent, v. David P. TERRY, Appellant.
Dean C. Schneller, Plattsburgh, for appellant. Andrew J. Wylie, District Attorney, Plattsburgh (Nicholas J. Evanovich of counsel), for respondent.
Dean C. Schneller, Plattsburgh, for appellant. Andrew J. Wylie, District Attorney, Plattsburgh (Nicholas J. Evanovich of counsel), for respondent.
Before: LAHTINEN, J.P., STEIN, McCARTHY, ROSE and CLARK, JJ.
CLARK, J.
Appeal from a judgment of the County Court of Clinton County (McGill, J.), rendered November 8, 2012, convicting defendant upon his plea of guilty of the crimes of forgery in the second degree (six counts), criminal possession of a forged instrument in the second degree (six counts), grand larceny in the third degree (three counts) and grand larceny in the fourth degree (three counts).
In satisfaction of two indictments charging him with numerous crimes, defendant pleaded guilty to forgery in the second degree (six counts), criminal possession of a forged instrument in the second degree (six counts), grand larceny in the third degree (three counts) and grand larceny in the fourth degree (three counts) and agreed to waive his right to appeal. He was thereafter sentenced, as a second felony offender, to an aggregate prison term of 12 to 24 years. Defendant now appeals.
We affirm. Initially, upon reviewing the record, including the plea colloquy and written waiver of appeal, we find that defendant's waiver of the right to appeal was invalid. He was not advised that the right to appeal is separate and distinct from the other rights that he was forfeiting by his guilty plea ( see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006]; People v. Patterson, 119 A.D.3d 1157, 1158, 990 N.Y.S.2d 319 [2014]; People v. Bressard, 112 A.D.3d 988, 988, 976 N.Y.S.2d 302 [2013], lv. denied22 N.Y.3d 1137, 983 N.Y.S.2d 495, 6 N.E.3d 614 [2014] ). Defendant's claim that he was denied the effective assistance of counsel is unpreserved for our review as the record does not reflect that he made an appropriate postallocution motion ( see People v. Vandemark, 117 A.D.3d 1339, 1340, 986 N.Y.S.2d 684 [2014], lv. denied24 N.Y.3d 965, –––N.Y.S.2d ––––, ––– N.E.3d –––– [Sept. 30, 2014]; People v. Trombley, 115 A.D.3d 1114, 1114, 982 N.Y.S.2d 791 [2014], lv. denied23 N.Y.3d 1068, 994 N.Y.S.2d 327, 18 N.E.3d 1148 [2014] ). Further, while defendant's contention that his sentence is harsh and excessive is properly before us, we find no extraordinary circumstances or abuse of discretion warranting a reduction of the sentence in the interest of justice ( see People v. Miller, 113 A.D.3d 935, 936, 978 N.Y.S.2d 475 [2014], lv. denied 22 N.Y.3d 1201, 986 N.Y.S.2d 421, 9 N.E.3d 916 [2014]; People v. Butler, 111 A.D.3d 1024, 1025, 975 N.Y.S.2d 218 [2013], lv. denied23 N.Y.3d 961, 988 N.Y.S.2d 568, 11 N.E.3d 718 [2014] ).
ORDERED that the judgment is affirmed. LAHTINEN, J.P., STEIN, McCARTHY and ROSE, JJ., concur.