Opinion
2012-11-29
The PEOPLE of the State of New York, Respondent, v. Eric L. EDIE, Appellant.
James P. Milstein, Public Defender, Albany (Theresa M. Suozzi of counsel), for appellant. P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), for respondent.
James P. Milstein, Public Defender, Albany (Theresa M. Suozzi of counsel), for appellant. P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), for respondent.
Before: PETERS, P.J., ROSE, MALONE JR., STEIN and EGAN JR., JJ.
EGAN JR., J.
Appeal from a judgment of the County Court of Albany County (Breslin, J.), rendered October 13, 2010, convicting defendant upon his plea of guilty of the crime of burglary in the second degree.
Defendant waived indictment and, in satisfaction of numerous outstanding felony charges, pleaded guilty to a superior court information charging him with a single count of burglary in the second degree and waived his right to appeal. Although County Court made no promises as to sentencing, the plea agreement called for defendant to be sentenced to no more than 10 years in prison followed by three years of postrelease supervision. County Court thereafter sentenced defendant to nine years in prison and three years of postrelease supervision. Defendant now appeals—primarily contending that the sentence imposed was harsh and excessive.
We affirm. Contrary to defendant's assertion, the record establishes that County Court separately and fully explained the rights encompassed by the appeal waiver and, further, that defendant understood and freely agreed to waive such rights ( see People v. Santana, 95 A.D.3d 1503, 1503, 944 N.Y.S.2d 406 [2012];People v. Tabbott, 61 A.D.3d 1183, 1184, 876 N.Y.S.2d 760 [2009],lv. denied13 N.Y.3d 750, 886 N.Y.S.2d 104, 914 N.E.2d 1022 [2009] ). However, because County Court made no commitment as to sentencing and defendant was not advised of the maximum term of imprisonment that could be imposed if he failed to comply with the terms of the plea agreement, his otherwise valid waiver of the right to appeal does not encompass his present challenge to the severity of his sentence ( see People v. Kelly, 96 A.D.3d 1700, 1700, 946 N.Y.S.2d 822 [2012];People v. Forkey, 72 A.D.3d 1209, 1211, 898 N.Y.S.2d 712 [2010];People v. Powers, 302 A.D.2d 685, 686, 756 N.Y.S.2d 296 [2003];People v. Ballinger, 299 A.D.2d 738, 739, 751 N.Y.S.2d 112 [2002];compare People v. Mills, 85 A.D.3d 1448, 1449, 925 N.Y.S.2d 904 [2011];People v. Bove, 64 A.D.3d 812, 813, 882 N.Y.S.2d 352 [2009],lv. denied13 N.Y.3d 858, 891 N.Y.S.2d 692, 920 N.E.2d 97 [2009] ). That said, we nonetheless find no extraordinary circumstances warranting a reduction of the sentence in the interest of justice ( see People v. Kelly, 96 A.D.3d at 1700, 946 N.Y.S.2d 822;People v. Powers, 302 A.D.2d at 686, 756 N.Y.S.2d 296;People v. Ballinger, 299 A.D.2d at 739, 751 N.Y.S.2d 112;People v. Shea, 254 A.D.2d 512, 513, 679 N.Y.S.2d 428 [1998] ).
ORDERED that the judgment is affirmed.