Opinion
05-04-2017
The PEOPLE of the State of New YORK, Respondent, v. John R. WALLEY, Appellant.
G. Scott Walling, Schenectady, for appellant. J. Anthony Jordon, District Attorney, Fort Edward (Sara E. Fischer of counsel), for respondent.
G. Scott Walling, Schenectady, for appellant.
J. Anthony Jordon, District Attorney, Fort Edward (Sara E. Fischer of counsel), for respondent.
Before: GARRY, J.P., LYNCH, ROSE, CLARK and AARONS, JJ.
CLARK, J.
Appeal from a judgment of the County Court of Washington County (McKeighan, J.), rendered April 24, 2015, convicting defendant upon his plea of guilty of the crime of aggravated criminal contempt.
Defendant was charged in three separate indictments with multiple crimes arising from various incidents of inappropriate contact that he had with the victim, who is the mother of his children and the subject of an order of protection. The indictments were consolidated and defendant entered an Alford plea of guilty to the crime of aggravated criminal contempt in satisfaction thereof. Under the terms of the plea agreement, he waived his right to appeal and was to be sentenced as a second felony offender to 2 ½ to 5 years in prison. County Court sentenced defendant to the agreed-upon prison term and directed that it run consecutively to the 1 to 3–year resentence that had been imposed upon his prior conviction of criminal mischief in the third degree. Defendant now appeals.
Defendant challenges the severity of the sentence which, when added to the prison term that he is serving upon being resentenced for criminal mischief in the third degree, amounts to an aggregate prison term of 3 ½ to 8 years. Preliminarily, the People concede, and we agree, that defendant's waiver of the right to appeal is invalid and does not preclude him from raising this challenge, inasmuch as the record does not disclose that he was advised of and fully understood the separate and distinct nature of the waiver (see People v. Cadet, 144 A.D.3d 1335, 1336–1337, 41 N.Y.S.3d 434 [2016], lv. denied 28 N.Y.3d 1143, 52 N.Y.S.3d 295, 74 N.E.3d 680 [2017] ; People v. Maxwell, 142 A.D.3d 739, 740, 36 N.Y.S.3d 832 [2016] ). As to the merits, defendant agreed, as part of the Alford plea, to the sentence of 2 ½ to 5 years in prison, which was well within the statutory parameters (see Penal Law § 70.06[3][d] ; [4][b] ). Although defendant maintains that there is an absence of any on-the-record discussion of the manner in which the sentence would run, the record discloses that the plea offer that was communicated to defendant specified that such sentence would run consecutively to his resentence on the criminal mischief conviction. Furthermore, defendant has a lengthy criminal record characterized by multiple incidents of domestic violence and repeated violations of orders of protection. In view of the foregoing, we find no extraordinary circumstances nor any abuse of discretion warranting a reduction of the sentence in the interest of justice (see People v. Lawing, 110 A.D.3d 1354, 1356, 975 N.Y.S.2d 778 [2013], lv. denied 22 N.Y.3d 1200, 986 N.Y.S.2d 420, 9 N.E.3d 915 [2014] ; People v. Spear, 37 A.D.3d 870, 871, 828 N.Y.S.2d 706 [2007] ).
ORDERED that the judgment is affirmed.
GARRY, J.P., LYNCH, ROSE and AARONS, JJ., concur.