Opinion
108570
04-12-2018
The PEOPLE of the State of New York, Respondent, v. Michael HART II, Appellant.
Lisa A. Burgess, Indian Lake, for appellant. Craig P. Carriero, District Attorney, Malone (Jennifer M. Hollis of counsel), for respondent.
Lisa A. Burgess, Indian Lake, for appellant.
Craig P. Carriero, District Attorney, Malone (Jennifer M. Hollis of counsel), for respondent.
Before: McCarthy, J.P., Egan Jr., Lynch, Mulvey and Pritzker, JJ.
MEMORANDUM AND ORDERAppeal from a judgment of the County Court of Franklin County (Main Jr., J.), rendered May 3, 2016, convicting defendant upon his plea of guilty of the crime of grand larceny in the fourth degree.
Defendant pleaded guilty to a single-count indictment charging him with grand larceny in the fourth degree stemming from his participation in the theft of electronics equipment from a department store. He orally waived his right to appeal as part of the plea agreement. He was thereafter sentenced, in accordance with the terms of the plea agreement, to 1 to 3 years in prison. Defendant now appeals, challenging the severity of the sentence.
Initially, defendant is not precluded by his waiver of the right to appeal from raising this claim inasmuch as we find the appeal waiver to be invalid. Significantly, County Court did not advise defendant of the separate and distinct nature of the waiver or question him to ascertain that he understood its ramifications (see People v. Thompson, 157 A.D.3d 1141, 1141, 69 N.Y.S.3d 744 [2018] ; People v. Farrell, 156 A.D.3d 1062, 1062–1063, 65 N.Y.S.3d 465 [2017], lv denied 30 N.Y.3d 1115, ––– N.Y.S.3d ––––, –––N.E.3d –––– [2018] ). Notwithstanding the invalidity of the appeal waiver, we do not find that the sentence is either harsh or excessive. Defendant's criminal history discloses a number of prior convictions and probation violations. In addition, defendant consented to the sentence as part of the plea agreement and could have received a longer prison term if convicted after trial. In view of the foregoing, we find no extraordinary circumstances or any abuse of discretion warranting a reduction of the sentence in the interest of justice (see People v. Ero, 139 A.D.3d 1248, 1250, 32 N.Y.S.3d 674 [2016], lv denied 28 N.Y.3d 929, 40 N.Y.S.3d 357, 63 N.E.3d 77 [2016] ; People v. Lowe, 53 A.D.3d 982, 983, 863 N.Y.S.2d 275 [2008] ).
ORDERED that the judgment is affirmed.
McCarthy, J.P., Egan Jr., Lynch, Mulvey and Pritzker, JJ., concur.