People v Washington

People v Washington 2016 NY Slip Op 03218 Decided on April 28, 2016 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: April 28, 2016
106697

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

v

KENNETH WASHINGTON, Appellant.

Calendar Date: March 22, 2016
Before: Lahtinen, J.P., McCarthy, Garry, Rose and Mulvey, JJ.

Alexander W. Bloomstein, Hillsdale, for appellant.

Max Zacker, Special Prosecutor, Catskill, for respondent.

Rose, J.

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Columbia County (Koweek, J.), rendered March 5, 2014, convicting defendant upon his plea of guilty of the crimes of burglary in the second degree and assault in the third degree.

Defendant pleaded guilty to burglary in the second degree and assault in the third degree as charged in a two-count indictment in accordance with a written plea agreement, and his plea included the waiver of the right to appeal. County Court thereafter sentenced defendant, as a second violent felony offender, to the agreed-upon sentence of seven years in prison, to be followed by five years of postrelease supervision. Defendant now appeals.

We affirm. Initially, in view of County Court's failure to distinguish the right to appeal from the rights automatically forfeited upon a plea of guilty, defendant's waiver of the right to appeal was invalid (see People v Bradshaw, 18 NY3d 257, 264-265 [2011]; People v Lopez, 6 NY3d 248, 256 [2006]). Accordingly, defendant's challenge to the sentence as harsh and excessive is not precluded [FN1]. Nevertheless, his claim is without merit, inasmuch as County Court [*2]imposed the minimum legally permissible sentence for a second violent felony offender convicted of burglary in the second degree, a class C felony (see Penal Law §§ 70.04, 140.25; People v Caban, 89 AD3d 1321, 1323 [2011]).

Lahtinen, J.P., McCarthy, Garry and Mulvey, JJ., concur.

ORDERED that the judgment is affirmed.

Footnotes

Footnote 1: To the extent that defendant argues that he was improperly sentenced as a second violent felony offender, the argument is unpreserved, inasmuch as he did not raise any objection to the predicate felony statement at sentencing (see People v McDowell, 56 AD3d 955, 955 [2008]; People v Robertson, 53 AD3d 791, 793 [2008], lv denied 11 NY3d 857 [2008]).