Opinion
2016–11862 Ind. No. 87/16
06-13-2018
The PEOPLE, etc., respondent, v. Joseph FAIRCLOTH, Jr., appellant.
Thomas N.N. Angell, Poughkeepsie, N.Y. (Steven Levine of counsel), for appellant. William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kirsten A. Rappleyea of counsel), for respondent.
Thomas N.N. Angell, Poughkeepsie, N.Y. (Steven Levine of counsel), for appellant.
William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kirsten A. Rappleyea of counsel), for respondent.
RUTH C. BALKIN, J.P., CHERYL E. CHAMBERS, SHERI S. ROMAN, JOSEPH J. MALTESE, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the County Court, Dutchess County (Edward T. McLoughlin, J.), rendered October 21, 2016, convicting him of attempted criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
When the defendant waived his right to appeal, he was misinformed by the County Court that the maximum sentence that he could receive was seven years of imprisonment followed by three years of postrelease supervision. Subsequently, the defendant was sentenced to seven years of imprisonment followed by five years of postrelease supervision. Under these circumstances, the defendant's waiver of the right to appeal does not encompass his challenge to the severity of the sentence (see People v. Eron, 79 A.D.3d 1774, 1775, 914 N.Y.S.2d 849 ; People v. Fehr, 303 A.D.2d 1039, 1040, 757 N.Y.S.2d 205 ; cf. People v. Lococo, 92 N.Y.2d 825, 677 N.Y.S.2d 57, 699 N.E.2d 416 ; see also People v. Eldridge, 8 A.D.3d 294, 295, 777 N.Y.S.2d 668 ). Nevertheless, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 85–86, 455 N.Y.S.2d 675 ).
BALKIN, J.P., CHAMBERS, ROMAN, MALTESE and CONNOLLY, JJ., concur.