People v Rabideau

People v Rabideau 2015 NY Slip Op 05715 Decided on July 2, 2015 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: July 2, 2015
106316

[*1]THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v

GERALD A. RABIDEAU, Appellant.

Calendar Date: May 26, 2015
Before: Lahtinen, J.P., McCarthy, Rose and Clark, JJ.

Lisa A. Burgess, Indian Lake, for appellant.

Andrew J. Wylie, District Attorney, Plattsburgh (Timothy Blatchley of counsel), for respondent.

Rose, J.

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Clinton County (McGill, J.), rendered September 4, 2013, convicting defendant upon his plea of guilty of the crime of criminal sale of a controlled substance in the third degree.

Defendant was charged with criminal sale of a controlled substance in the third degree (two counts) and criminal possession of a controlled substance in the third degree (two counts). In satisfaction of the charges, he pleaded guilty to one count of criminal sale of a controlled substance in the third degree and purportedly waived his right to appeal. In accordance with the plea agreement, County Court sentenced defendant, as a second felony offender, to a prison term of seven years to be followed by two years of postrelease supervision. Defendant now

appeals, contending that his appeal waiver is invalid and that his agreed-upon sentence is harsh and excessive.

Initially, we cannot conclude that defendant's waiver of the right to appeal was knowingly, intelligently and voluntarily made inasmuch as County Court did not adequately explain to defendant that his waiver of the right to appeal was separate and distinct from the rights automatically forfeited upon a plea of guilty (see People v Bradshaw, 18 NY3d 257, 264-265 [2011]; People v Labaff, 127 AD3d 1471, 1471 [2015]; People v Ritter, 124 AD3d 1133, 1134 [2015]). Although a written waiver dated the same day as the plea proceeding is in the record, "County Court made no inquiry as to whether defendant understood [it] or whether his counsel had in fact discussed the waiver[] with him" (People v Phipps, 127 AD3d 1500, 1501 [*2][2015]; see People v Vences, 125 AD3d 1050, 1051-1052 [2015]). Accordingly, we hold that the appeal waiver is unenforceable and, thus, defendant's challenge to the sentence as harsh and excessive is not precluded (see People v Lopez, 6 NY3d 248, 257 [2006]; People v Ashlaw, 126 AD3d 1236, 1237 [2015]). However, based upon defendant's extensive criminal history, we find no extraordinary circumstances or abuse of discretion that would require modification in the interest of justice (see People v Labaff, 127 AD3d at 1472; People v Richards, 124 AD3d 1146, 1147-1148 [2015], lv denied 25 NY3d 992 [2015]).

Lahtinen, J.P., McCarthy and Clark, JJ., concur.

ORDERED that the judgment is affirmed.