People v. Morrow

• Decision Date: 13 July 2018
• Docket Number: 108248
• Citation: 163 A.D.3d 1265,80 N.Y.S.3d 559
• Parties: The PEOPLE of the State of New York, Respondent v. Maurice D. MORROW, Appellant.
• Court: New York Supreme Court — Appellate Division

163 A.D.3d 1265

80 N.Y.S.3d 559

The PEOPLE of the State of New York, Respondent

v.Maurice D. MORROW, Appellant.

108248

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: May 8, 2018

Decided and Entered: July 13, 2018

Robert A. Regan, Glens Falls, for appellant.

J. Anthony Jordan, District Attorney, Fort Edward (Joseph A. Frandino of counsel), for respondent.

Before: Garry, P.J., McCarthy, Egan Jr., Lynch and Devine, JJ.

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Washington County (McKeighan, J.), rendered February 26, 2015, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the third degree.

In satisfaction of a two-count indictment, defendant pleaded guilty to criminal possession of a controlled substance in the third degree and waived his right to appeal. In accordance with the terms of the plea agreement, defendant was sentenced to seven years in prison followed by three years of postrelease supervision. He now appeals.

We affirm. Initially, the People concede, and we agree, that defendant's waiver of the right to appeal is invalid inasmuch as County Court failed to advise defendant that the right to appeal is separate and distinct from the rights automatically forfeited by pleading guilty (see People v. Treceno, 160 A.D.3d 1216, 1216, 71 N.Y.S.3d 915 [2018] ; People v. Lane, 159 A.D.3d 1195, 1195, 69 N.Y.S.3d 842 [2018] ; People v. Walley, 150 A.D.3d 1334, 1334–1335, 54 N.Y.S.3d 197 [2017] ; People v. Cadet, 144 A.D.3d 1335, 1336–1337, 41 N.Y.S.3d 434 [2016], lv denied 28 N.Y.3d 1143, 52 N.Y.S.3d 295, 74 N.E.3d 680 [2017], cert denied ––– U.S. ––––, 138 S.Ct. 112, 199 L.Ed.2d 70 [2017] ). As such, defendant's challenge to the sentence as harsh and excessive is not precluded. Nevertheless, we find no basis to disturb the agreed-upon sentence that was imposed. In this regard, defendant's sentence is well within the permissible statutory range (see Penal Law § 70.70[3][b][i] ), and our review of the record reveals no extraordinary circumstances or abuse of discretion to warrant a reduction of the sentence in the interest of justice (see People v. Whalen, 101 A.D.3d 1167, 1169, 956 N.Y.S.2d 598 [2012], lv denied 20 N.Y.3d 1105, 965 N.Y.S.2d 801, 988 N.E.2d 539 [2013] ).

Lastly, we note that, although County Court referred to defendant as a second felony offender at sentencing, the court actually sentenced defendant as a second felony drug offender (compare Penal Law § 70.06[3][b] ; [4][b], with Penal Law § 70.70[3][b][i] ). Accordingly, an amended uniform sentence and commitment form must be prepared that reflects his status as a second felony drug offender (see People v. Williams, 145 A.D.3d 1188, 1191, 43 N.Y.S.3d 190 [2016], lv denied 29 N.Y.3d 1002, 57 N.Y.S.3d 723, 80 N.E.3d 416 [2017] ; People v. Labaff, 127 A.D.3d 1471, 1472, 7 N.Y.S.3d 682 [2015], lv denied 26 N.Y.3d 931, 17 N.Y.S.3d 94, 38 N.E.3d 840 [2015] ).

ORDERED that the judgment is...