People v Gonzalez

People v Gonzalez 2016 NY Slip Op 03220 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
106891

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

v

JUSTIN GONZALEZ, Appellant.

Calendar Date: March 24, 2016
Before: McCarthy, J.P., Egan Jr., Rose, Devine and Clark, JJ.

Cliff Gordon, Monticello, for appellant.

James R. Farrell, District Attorney, Monticello (Hannah Rose Prall of counsel), for respondent.

Rose, J.

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.), rendered March 5, 2014, convicting defendant upon his pleas of guilty of the crimes of assault in the first degree, assault in the second degree, resisting arrest and criminal mischief in the fourth degree.

Defendant pleaded guilty to a superior court information charging him with assault in the second degree, resisting arrest and criminal mischief in the fourth degree and waived his right to appeal. Prior to sentencing, defendant was involved in another incident and ultimately pleaded guilty to assault in the first degree and, again, waived his right to appeal. In accordance with the plea agreements, County Court sentenced defendant to concurrent prison terms of seven years followed by

five years of postrelease supervision on each of the assault convictions and one year each on the remaining two misdemeanor convictions, the sentences to run concurrently. Defendant now appeals.

Initially, we find that defendant's waivers of the right to appeal were invalid. Although defendant executed detailed written waivers, a review of the record establishes 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 but, rather, improperly lumped those rights together," and the court did not adequately "ensure that defendant understood the content or consequences of the appeal waiver" (People v Williams, 132 AD3d 1155, 1155 [2015] [internal quotation marks and citations omitted]; see People v Mones, 130 AD3d 1244, 1244-1245 [*2][2015]). As such, defendant's challenge to the severity of the sentences imposed is properly before us for review. Nonetheless, we find that the agreed-upon sentences are not harsh or excessive as our review of the record does not reveal an abuse of County Court's discretion or any extraordinary circumstances that would warrant a reduction of defendant's sentence in the interest of justice (see People v Filion, 134 AD3d 1244, 1245 [2015]; People v Anderson, 129 AD3d 1385, 1385 [2015], lvs denied 26 NY3d 965 [2015]).[FN1]

McCarthy, J.P., Egan Jr., Devine and Clark, JJ., concur.

ORDERED that the judgment is affirmed.

Footnotes

Footnote 1: We note that the period of postrelease supervision for defendant's conviction of assault in the second degree, which is a class D violent felony (see Penal Law § 120.05 [3]), shall not be "more than three years whenever a determinate sentence of imprisonment is imposed pursuant to [Penal Law § 70.02 (3)] upon a conviction of a class D . . . violent felony offense" (Penal Law § 70.45 [2] [e]). However, inasmuch as the five-year period of postrelease supervision imposed in connection with defendant's conviction of assault in the first degree was proper (see Penal Law § 70.45 [2] [f]), and the sentences imposed are to run concurrently, any challenge to the improperly imposed postrelease supervision is academic.