Opinion
No. 2022-16 W CR
07-13-2023
The People of the State of New York, Respondent, v. Andres Castillo, Appellant.
Richard L. Herzfeld, for appellant. Westchester County District Attorney (William C. Milaccio of counsel), for respondent.
Unpublished Opinion
Richard L. Herzfeld, for appellant.
Westchester County District Attorney (William C. Milaccio of counsel), for respondent.
PRESENT: JERRY GARGUILO, P.J., ELIZABETH H. EMERSON, JAMES P. McCORMACK, JJ
Appeal by defendant, as limited by the brief, from a sentence of the City Court of Yonkers, Westchester County (Elena Goldberg-Velazquez, J.), imposed June 14, 2021, upon his conviction of criminal contempt in the second degree, following his plea of guilty.
ORDERED that the sentence is affirmed.
Following negotiations, defendant pleaded guilty to criminal contempt in the second degree (Penal Law § 215.50 [3]), a class A misdemeanor, in satisfaction of three dockets, and was sentenced to time served and three years' probation with drug and domestic violence conditions. On appeal, defendant contends that his waiver of appeal was invalid and that his sentence was illegal and excessive.
A review of the record indicates that defendant's waiver of his right to appeal was invalid because his waiver statement did not adequately indicate that he "comprehend[ed] that the appeal waiver is separate and distinct from those rights automatically forfeited upon a plea of guilty" (People v Bradshaw, 18 N.Y.3d 257, 264 [2011] [internal quotation marks omitted]; see People v Lopez, 6 N.Y.3d 248, 256 [2006]; People v Van Clief, 122 A.D.3d 1062 [2014]; People v Brown, 122 A.D.3d 133 [2014]; People v Feigelson, 78 Misc.3d 23 [App Term, 2d Dept, 9th & 10th Jud Dists 2023]).
Penal Law § 60.01 (2) (d) states that:
"In any case where the court imposes a sentence of imprisonment not in excess of sixty days, for a misdemeanor... it may also impose a sentence of probation... provided that the term of probation... together with the term of imprisonment shall not exceed the term of probation... authorized by article sixty-five of this chapter. The sentence of imprisonment shall... run concurrently with the sentence of probation..."
Penal Law § 65.00 (3) (b) (i) authorizes a probationary term of "two or three years" for class A misdemeanors. Here, the City Court sentenced defendant to the promised split sentence of time served and three years' probation, and it is uncontroverted that he had served less than 60 days in jail at that point. Although the court did not expressly state that the term of imprisonment and term of probation were to run concurrently, it also did not state that the terms were consecutive.
We find that defendant's contention that the sentence was illegal because the sentence of time served and three years' probation exceeded the maximum of three years authorized by Penal Law §§ 60.01 (2) (d) and 65.00 (3) (b) (i) lacks merit. When a sentence of imprisonment is imposed along with a period of probation, "[t]he sentence of imprisonment shall be a condition of and run concurrently with the sentence of probation" (Penal Law § 60.01 [2] [d]) and, consequently, "modification of the sentence is not warranted since the prison and probationary terms are concurrent by operation of law" (People v Riley, 152 A.D.2d 757, 759-760 [1989]; see People v Beaner, 219 A.D.2d 827, 828 [1995]; People v Piwowar, 101 A.D.2d 686 [1984]). Defendant has been sentenced according to the terms of a bargained-for plea and sentencing agreement, and the sentence was not unduly harsh or excessive (see People v Galvez, 72 A.D.3d 838 [2010]; People v Caguana, 69 A.D.3d 953, 954 [2010]; People v Ubiles, 59 A.D.3d 572 [2009]; People v Kazepis, 101 A.D.2d 816, 817 [1984]; People v Suitte, 90 A.D.2d 80 [1982]).
Accordingly, the sentence is affirmed.
GARGUILO, P.J., EMERSON and McCORMACK, JJ., concur.