Opinion
02-03-2017
The PEOPLE of the State of New York, Respondent, v. Terry L. HOLMES, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Caitlin M. Connelly of Counsel), for Defendant–Appellant. Joseph V. Cardone, District Attorney, Albion (Katherine Bogan of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Caitlin M. Connelly of Counsel), for Defendant–Appellant.
Joseph V. Cardone, District Attorney, Albion (Katherine Bogan of Counsel), for Respondent.
PRESENT: WHALEN, P.J., CENTRA, DeJOSEPH, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM:Defendant appeals from a judgment convicting him upon his plea of guilty of attempted criminal possession of a controlled substance in the third degree (Penal Law §§ 110.00, 220.16[1] ). We agree with defendant that his waiver of the right to appeal is not valid inasmuch as County Court conflated the right to appeal with those rights automatically forfeited by the guilty plea (see People v. Sanborn, 107 A.D.3d 1457, 1458, 965 N.Y.S.2d 910 ). Thus, the record fails to establish that "defendant understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty" (People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; see People v. Bradshaw, 18 N.Y.3d 257, 264, 938 N.Y.S.2d 254, 961 N.E.2d 645 ). To the extent that defendant's contention that he was denied effective assistance of counsel at sentencing survives his guilty plea, we conclude that it lacks merit (see People v. Smith, 144 A.D.3d 1547, 1548, 40 N.Y.S.3d 330 ). " ‘Defendant was sentenced in accordance with the plea agreement, and any alleged deficiencies in defense counsel's representation at sentencing do not constitute ineffective assistance’ " (People v. Gregg, 107 A.D.3d 1451, 1452, 965 N.Y.S.2d 908 ; see Smith, 144 A.D.3d at 1548, 40 N.Y.S.3d 330; see generally People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265 ). We conclude that the sentence is not unduly harsh or severe, even considering that defendant's accomplice received a lesser sentence (see People v. Shaffner, 96 A.D.3d 1689, 1690, 946 N.Y.S.2d 916 ). We note, however, that the certificate of conviction should be amended because it incorrectly reflects that defendant was sentenced as a second felony offender when he was actually sentenced as a second felony drug offender (see People v. Smallwood, 145 A.D.3d 1447, 1447, 44 N.Y.S.3d 623 ; People v. Easley, 124 A.D.3d 1284, 1285, 1 N.Y.S.3d 640, lv. denied 25 N.Y.3d 1200, 16 N.Y.S.3d 523, 37 N.E.3d 1166 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.