PEOPLE v. RODRIGUEZ (2024)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Rensselaer County (Debra J. Young, J.), rendered April 3, 2019, convicting defendant upon his plea of guilty of the crime of criminal sale of a controlled substance in the third degree.

Defendant was charged in two indictments with various drug-related crimes.  In satisfaction of the indictments, defendant agreed to plead guilty to criminal sale of a controlled substance in the third degree and purportedly waived the right to appeal.  Pursuant to the plea agreement, there was no promise made as to the length of the sentence to be imposed.  Inasmuch as defendant was participating in a Treatment Accountability for Safer Communities (hereinafter TASC) program resulting from an Albany County conviction at the time, the terms of the plea agreement included that he complete that program and sentencing would be adjourned.  Defendant was advised by County Court that if he failed to complete the TASC program, he could be sentenced up to the maximum of nine years in prison.  After County Court was informed that defendant had absconded from the TASC program prior to completion, a warrant was issued for his arrest.  Following his arrest, County Court sentenced defendant to five years in prison, to be followed by two years of postrelease supervision, with the sentence to run consecutively to the sentence he was serving for the Albany County conviction.  Defendant appeals.

We affirm.  Initially, as the People concede and our review of the record confirms, defendant's appeal waiver is invalid.  “The written waiver executed by defendant contained overbroad and inaccurate language, and County Court's oral explanation of the waiver did not overcome these defects by ensuring that defendant understood that some appellate and collateral review survived” (People v. Thompson, 216 A.D.3d 1370, 1370–1371, 188 N.Y.S.3d 277 [3d Dept. 2023] [internal quotation marks and citations omitted];  see People v. Thaxton, 222 A.D.3d 1171, 1172, 202 N.Y.S.3d 518 [3d Dept. 2023]).

Defendant also contends that his sentence is harsh and excessive.  Initially, County Court's imposition of a consecutive prison sentence was legally permissible, inasmuch as the convictions in Rensselaer and Albany Counties resulted from separate and distinct acts (see People v. Figueroa, 167 A.D.3d 1073, 1075, 89 N.Y.S.3d 449 [3d Dept. 2018];  People v. Redeye, 8 A.D.3d 829, 830, 778 N.Y.S.2d 558 [3d Dept. 2004];  People v. Brooks, 210 A.D.2d 800, 803, 621 N.Y.S.2d 701 [3d Dept. 1994], lv denied 85 N.Y.2d 906, 627 N.Y.S.2d 329, 650 N.E.2d 1331 [1995]).  Further, given defendant's criminal history, which was amassed over a short period of time, and his failure to complete the TASC program, we do not find the sentence imposed to be unduly harsh or severe so as to warrant a reduction in the interest of justice (see CPL 470.15[6][b]).

ORDERED that the judgment is affirmed.

Powers, J.

Garry, P.J., Egan Jr., Lynch and Fisher, JJ., concur.