PEOPLE v. MIRABAL (2023)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Delaware County (Richard D. Northrup Jr., J.), rendered March 26, 2018, convicting defendant upon his plea of guilty of the crime of criminal sale of a controlled substance in the third degree.

Defendant pleaded guilty to criminal sale of a controlled substance in the third degree in satisfaction of a three-count indictment charging him with the sale of cocaine on three dates in January 2017 and a superior court information charging him with criminal possession of a controlled substance in the third degree.¹  Pursuant to the plea agreement, defendant purportedly waived his right to appeal and County Court thereafter imposed the agreed-upon sentence of five years in prison to be followed by 11/212 years of postrelease supervision, as an acknowledged second felony offender.  Defendant appealed, and this Court rejected counsel's Anders brief, withheld decision and assigned new counsel to represent defendant on the appeal (208 A.D.3d 1465, 174 N.Y.S.3d 167 [3d Dept. 2022]).

Initially, we agree with defendant that his waiver of the right to appeal is invalid.  County Court failed to inform defendant that the right to appeal was separate and distinct from the rights he was forfeiting by pleading guilty (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006];  People v. Haenelt, 161 A.D.3d 1489, 1489, 77 N.Y.S.3d 770 [3d Dept. 2018], lv denied 31 N.Y.3d 1148, 83 N.Y.S.3d 430, 108 N.E.3d 504 [2018]) and the written waiver of appeal was similarly deficient (see People v. Duckett, 205 A.D.3d 1229, 1229, 168 N.Y.S.3d 178 [3d Dept. 2022], lv denied 39 N.Y.3d 939, 177 N.Y.S.3d 517, 198 N.E.3d 760 [2022];  People v. LaPierre, 189 A.D.3d 1813, 1815, 137 N.Y.S.3d 583 [3d Dept. 2020], lv denied 36 N.Y.3d 1098, 144 N.Y.S.3d 138, 167 N.E.3d 1273 [2021]).  Accordingly, defendant's remaining claim challenging the severity of his sentence is not foreclosed (see People v. Coler, 214 A.D.3d 1207, 1207, 185 N.Y.S.3d 834 [3d Dept. 2023]).  That said, upon reviewing the record and considering all of the relevant factors, we do not find the sentence imposed to be unduly harsh or severe (see CPL 470.15[6][b]), and we decline defendant's invitation to reduce it in the interest of justice.

ORDERED that the judgment is affirmed.

FOOTNOTES

1.   The superior court information is not included in the record on appeal.

Lynch, J.P., Clark, Pritzker, Reynolds Fitzgerald and Ceresia, JJ., concur.