People v. Perkins, 107397.

• Decision Date: 27 July 2017
• Docket Number: 107397.
• Citation: 152 A.D.3d 1072,60 N.Y.S.3d 534
• Parties: The PEOPLE of the State of New York, Respondent, v. Nate PERKINS, Appellant.
• Court: New York Supreme Court — Appellate Division

152 A.D.3d 1072
60 N.Y.S.3d 534

The PEOPLE of the State of New York, Respondent,
v.
Nate PERKINS, Appellant.

107397.

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

July 27, 2017.

60 N.Y.S.3d 535

Kelly M. Monroe, Albany, for appellant.

Robert M. Carney, District Attorney, Schenectady (Chandler Delamater of counsel), for respondent.

Before: GARRY, J.P., EGAN JR., LYNCH, MULVEY and AARONS, JJ.

Appeal from a judgment of the County Court of Schenectady County (Giardino, J.), rendered May 15, 2014, convicting defendant upon his plea of guilty of the crime of arson in the third degree.

Following a series of fires between 2010 and 2013, defendant was charged by indictment with five counts of arson in the third degree each stemming from different fires. Pursuant to a plea agreement that satisfied all charges, defendant pleaded guilty to the first count, admitting that he had intentionally set a fire in 2010. Consistent with the agreement, which included a waiver of appeal, County Court imposed a prison sentence of 4 to 12 years. Defendant appeals.

Defendant's sole contention on appeal is that the sentence imposed is harsh and excessive. Initially, while defendant signed a written waiver of appeal and indicated that he remembered going over it with counsel, the record does not reflect that he read it, was aware of its contents or understood it (see People v. Elmer, 19 N.Y.3d 501, 510, 950 N.Y.S.2d 77, 973 N.E.2d 172 [2012] ; People v. Davis, 136 A.D.3d 1220, 1221, 25 N.Y.S.3d 727 [2016], lv. denied 27 N.Y.3d 1068, 38 N.Y.S.3d 838, 60 N.E.3d 1204 [2016] ). County Court did not explain the right to appeal, and the plea colloquy does not otherwise establish that defendant, who has developmental disabilities, understood his right to appeal and appreciated the consequences of the waiver. Accordingly, the appeal waiver is invalid and defendant is not precluded from challenging the severity of the sentence (see People v. Bradshaw, 18 N.Y.3d 257, 264–265, 938 N.Y.S.2d 254, 961 N.E.2d 645 [2011] ; People v. Lopez, 6 N.Y.3d 248, 256–257, 811 N.Y.S.2d...