PEOPLE v. STEENBERG (2018)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Franklin County (Main Jr., J.), rendered June 22, 2016, which revoked defendant's periods of probation and imposed sentences of imprisonment.

In April 2013, defendant pleaded guilty in St. Lawrence County to felony driving while intoxicated and he was sentenced to five years of probation.  His probation supervision was then transferred to Franklin County.  In March 2014, he pleaded guilty in Franklin County to aggravated driving while intoxicated, and he was again sentenced to five years of probation.  Thereafter, defendant was charged with violating the terms of both probationary sentences, including the condition that he abide by all provisions of his Franklin County Drug Treatment Court participation contract.  Defendant subsequently agreed to admit to the probation violations, with the understanding that County Court would revoke his probation and resentence him to no more than 1 to 3 years in prison on each of the alleged violations, with such sentences running consecutively.  The terms of the agreement also required defendant to waive his right to appeal.  Following defendant's admissions, County Court revoked defendant's probation and resentenced him to an aggregate prison term of 2 to 6 years, to be followed by a three-year conditional discharge.  Defendant now appeals.

Preliminarily, we agree with defendant that his waiver of the right to appeal is invalid, as the record does not disclose that he was informed of the separate and distinct nature of the waiver or that he fully understood its ramifications at the time that he admitted to the probation violations (see People v. Thompson, 157 A.D.3d 1141, 1141, 69 N.Y.S.3d 744 [2018];  People v. Aubain, 152 A.D.3d 868, 869, 61 N.Y.S.3d 148 [2017];  compare People v. Bartlett, 148 A.D.3d 1468, 1469, 49 N.Y.S.3d 313 [2017] ).  Given the invalidity of the appeal waiver, defendant's additional claim—that the consecutive sentences imposed by County Court upon resentencing are harsh and excessive ¹ —is not precluded (see People v. Meddaugh, 150 A.D.3d 1545, 1548, 55 N.Y.S.3d 777 [2017];  People v. Zabawczuk, 128 A.D.3d 1267, 1269, 11 N.Y.S.3d 692 [2015], lv denied 26 N.Y.3d 937, 17 N.Y.S.3d 100, 38 N.E.3d 846 [2015] ).  Nevertheless, we find defendant's argument to be without merit.  Defendant had multiple driving while intoxicated convictions and repeatedly violated numerous conditions of his probation, with many of these violations arising out of his unsuccessful participation in drug treatment court.  Significantly, he was fully aware at the time that he admitted to the probation violations that consecutive sentences would be imposed.  Consequently, we find no extraordinary circumstances or abuse of discretion warranting a reduction of the resentences in the interest of justice (see People v. Joseph PP., 153 A.D.3d 970, 971–972, 59 N.Y.S.3d 840 [2017];  People v. Klemko, 150 A.D.3d 1487, 1488, 55 N.Y.S.3d 491 [2017];  People v. Hawke, 270 A.D.2d 646, 647, 705 N.Y.S.2d 413 [2000] ).

ORDERED that the judgment is affirmed.

FOOTNOTES

1.   Defendant has been released to parole supervision and maintains that the consecutive sentences have resulted in an excessive period of parole supervision.

Clark, J.

Garry, P.J., Egan Jr., Mulvey and Rumsey, JJ., concur.