Opinion
2013-05-2
The PEOPLE of the State of New York, Respondent, v. Sheldon W. GILBERT, Appellant.
Richard V. Manning, Parishville, for appellant. Nicole M. Duve, District Attorney, Canton (Jonathan L. Becker of counsel), for respondent.
Richard V. Manning, Parishville, for appellant. Nicole M. Duve, District Attorney, Canton (Jonathan L. Becker of counsel), for respondent.
Before: MERCURE, J.P., SPAIN, McCARTHY and EGAN JR., JJ.
McCARTHY, J.
Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.), rendered July 18, 2011, convicting defendant upon his plea of guilty of the crime of burglary in the second degree.
In satisfaction of two pending indictments and other charges, defendant pleaded guilty to one count of burglary in the second degree and waived his right to appeal. In exchange, County Court agreed to sentence him to interim probation and reduce his conviction to attempted burglary in the second degree and place him on probation, if he successfully completed a drug treatment program; if unsuccessful in treatment, the court would impose a prison term for the burglary conviction. Prior to sentencing, defendant was terminated from several treatment programs. County Court sentenced him to six years in prison, followed by five years of postrelease supervision. Defendant appeals.
Initially, the waiver of appeal “was invalid inasmuch as the record does not disclose that defendant understood that this right was separate and distinct from the other rights he forfeited by pleading guilty” ( People v. Secore, 102 A.D.3d 1059, 1060, 958 N.Y.S.2d 538 [2013];see People v. Lopez, 6 N.Y.3d 248, 256–257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006];People v. Cianfarani, 81 A.D.3d 998, 999, 916 N.Y.S.2d 650 [2011] ). Regardless of the invalidity of the waiver, as defendant abandoned his objection during sentencing and never moved to withdraw his plea or vacate the judgment of conviction, he did not preserve his argument concerning the enhancement of his sentence ( see People v. DePalma, 99 A.D.3d 1116, 1117, 952 N.Y.S.2d 316 [2012],lv. denied20 N.Y.3d 1010, 960 N.Y.S.2d 353, 984 N.E.2d 328 [2013];People v. Haynes, 14 A.D.3d 789, 790–791, 788 N.Y.S.2d 469 [2005],lv. denied 4 N.Y.3d 831, 796 N.Y.S.2d 586, 829 N.E.2d 679 [2005];compare People v. Davis, 72 A.D.3d 1292, 1293, 898 N.Y.S.2d 721 [2010] ). Considering defendant's multiple crimes, as well as his inability to follow the rules to successfully complete treatment, County Court did not abuse its discretion in imposing sentence and no extraordinary circumstances exist to warrant disturbing the sentence ( see People v. Bean, 102 A.D.3d 1062, 1063, 958 N.Y.S.2d 241 [2013];People v. Brown, 96 A.D.3d 1236, 1237, 946 N.Y.S.2d 900 [2012] ).
ORDERED that the judgment is affirmed.