PEOPLE v. WHITE (2018)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Schenectady County (Loyola, J.), rendered March 18, 2016, convicting defendant upon his plea of guilty of the crimes of attempted criminal possession of a weapon in the second degree and perjury in the first degree.

In satisfaction of two indictments, defendant pleaded guilty to attempted criminal possession of a weapon in the second degree and perjury in the first degree and purportedly waived his right to appeal.  County Court thereafter imposed the agreed-upon aggregate sentence of 6 1/212 years in prison, to be followed by five years of postrelease supervision.  Defendant now appeals.

Initially, we agree with defendant that he did not knowingly, intelligently and voluntarily waive the right to appeal.  County Court failed to explain to him that the right to appeal is separate and distinct from the rights automatically forfeited 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. Meddaugh, 150 A.D.3d 1545, 1546, 55 N.Y.S.3d 777 [2017] ).  Further, although defendant executed two written waivers of appeal, County Court did not “ensure that defendant understood the content or consequences of the appeal waiver[s]” (People v. Williams, 132 A.D.3d 1155, 1155, 20 N.Y.S.3d 176 [2015], lv denied 27 N.Y.3d 1157, 39 N.Y.S.3d 390, 62 N.E.3d 130 [2016];  accord People v. Aubain, 152 A.D.3d 868, 869, 61 N.Y.S.3d 148 [2017] ).  While the invalid appeal waivers do not preclude defendant's challenge to his sentence as harsh and excessive, the sentence was in accordance with the plea agreement and we find no abuse of discretion or extraordinary circumstances warranting a reduction thereof (see People v. Wolcott, 154 A.D.3d 1001, 1002, 60 N.Y.S.3d 852 [2017], lv denied 31 N.Y.3d 1089, 79 N.Y.S.3d 111, 103 N.E.3d 1258, 2018 WL 2940554 [May 14, 2018];  People v. Langley, 111 A.D.3d 1023, 1024, 974 N.Y.S.2d 655 [2013] ).

ORDERED that the judgment is affirmed.

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