People v Webb

People v Webb 2016 NY Slip Op 01704 Decided on March 10, 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: March 10, 2016
105338

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

v

JOSEPH WEBB, Appellant.

Calendar Date: January 19, 2016
Before: Peters, P.J., Garry, Egan Jr. and Rose, JJ.

Marcy I. Flores, Warrensburg, for appellant.

J. Anthony Jordan, District Attorney, Fort Edward (Sara E. Fischer of counsel), for respondent.

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Washington County (McKeighan, J.), rendered June 15, 2012, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the third degree.

Defendant pleaded guilty to criminal possession of a controlled substance in the third degree in full satisfaction of a four-count indictment and executed a waiver of his right to appeal. Under the terms of his plea agreement, County Court agreed to sentence defendant to a prison term of four years with two years of postrelease supervision provided that he did not have any undisclosed prior felonies. Upon finding thereafter that defendant had a prior felony conviction that had not been considered, the court adjourned sentencing for further review and to allow defendant an opportunity to withdraw his plea. Defendant chose not to withdraw his plea and agreed to proceed to

sentencing and to be sentenced, as a second felony offender, to a prison term of six years with two years of postrelease supervision; the court then imposed the agreed-upon sentence. Defendant appeals.

Initially, we find that defendant's waiver of the right to appeal does not preclude his challenge to the sentence, as his written waiver executed in the course of the plea proceedings expressly recited only the original four-year sentence. Turning to the merits, in light of defendant's criminal history and the severity of the conduct underlying his conviction, we reject his sole contention on appeal that the sentence imposed by County Court was harsh and excessive (see People v Tetreault, 131 AD3d 1327, 1328 [2015]; People v Rabideau, 130 AD3d 1094, 1095 [2015]; People v Ensley, 53 AD3d 929, 930 [2008]).

Peters, P.J., Garry, Egan Jr. and Rose, JJ., concur.

ORDERED that the judgment is affirmed.