People v White

People v White 2016 NY Slip Op 00542 Decided on January 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: January 28, 2016
106722

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

v

HESOID S. WHITE, Appellant.

Calendar Date: December 8, 2015
Before: Peters, P.J., McCarthy, Egan Jr. and Devine, JJ.

Keeley A. Maloney, Albany, for appellant.

James E. Conboy, District Attorney, Fonda (William J. Mycek of counsel), for respondent.

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Montgomery County (Catena, J.), rendered April 4, 2014, convicting defendant upon his plea of guilty of the crime of attempted burglary in the second degree.

Defendant entered the unlocked residence of a sleeping woman and removed certain items of personal property. A neighbor who witnessed the unlawful entry alerted police and defendant was apprehended. In satisfaction of a three-count indictment, he pleaded guilty to attempted burglary in the second degree. He was thereafter sentenced, in accordance with the plea agreement, to 3½ years in prison, to be followed by three years of postrelease supervision. He now appeals.

Defendant's sole contention is that the sentence is harsh and excessive. Initially, insofar as County Court failed to

advise defendant that his right to appeal was separate and distinct from the other rights that he was forfeiting by pleading guilty (see People v Zabawczuk, 128 AD3d 1267, 1268-1269 [2015], lv denied 26 NY3d 937 [2015]; People v Labaff, 127 AD3d 1471, 1471 [2015], lv denied 26 NY3d 931 [2015]), his waiver of appeal is invalid and does not preclude him from challenging the severity of the sentence. Nevertheless, we find no reason to disturb the sentence imposed. Defendant agreed to the sentence as part of the plea agreement and it was significantly less than he could have received if convicted after trial. In addition, his criminal record reveals that this is his fourth criminal conviction in as many years. Consequently, we find no extraordinary circumstances nor any abuse of discretion warranting a reduction of the sentence in the interest of justice (see People v Whitted, 117 AD3d 1179, 1182-1183 [2014], lv denied 23 NY3d 1026 [*2][2014]; People v Miller, 70 AD3d 1120, 1121 [2010], lv denied 14 NY3d 890 [2010]).

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

ORDERED that the judgment is affirmed.