People v. Washington ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: April 28, 2016 106697
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THE PEOPLE OF THE STATE OF
NEW YORK,
Respondent,
v MEMORANDUM AND ORDER
KENNETH WASHINGTON,
Appellant.
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Calendar Date: March 22, 2016
Before: Lahtinen, J.P., McCarthy, Garry, Rose and Mulvey, JJ.
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Alexander W. Bloomstein, Hillsdale, for appellant.
Max Zacker, Special Prosecutor, Catskill, for respondent.
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Rose, J.
Appeal from a judgment of the County Court of Columbia
County (Koweek, J.), rendered March 5, 2014, convicting defendant
upon his plea of guilty of the crimes of burglary in the second
degree and assault in the third degree.
Defendant pleaded guilty to burglary in the second degree
and assault in the third degree as charged in a two-count
indictment in accordance with a written plea agreement, and his
plea included the waiver of the right to appeal. County Court
thereafter sentenced defendant, as a second violent felony
offender, to the agreed-upon sentence of seven years in prison,
to be followed by five years of postrelease supervision.
Defendant now appeals.
-2- 106697
We affirm. Initially, in view of County Court's failure to
distinguish the right to appeal from the rights automatically
forfeited upon a plea of guilty, defendant's waiver of the right
to appeal was invalid (see People v Bradshaw, 18 NY3d 257, 264-
265 [2011]; People v Lopez, 6 NY3d 248, 256 [2006]).
Accordingly, defendant's challenge to the sentence as harsh and
excessive is not precluded.1 Nevertheless, his claim is without
merit, inasmuch as County Court imposed the minimum legally
permissible sentence for a second violent felony offender
convicted of burglary in the second degree, a class C felony (see
Penal Law §§ 70.04, 140.25; People v Caban, 89 AD3d 1321, 1323
[2011]).
Lahtinen, J.P., McCarthy, Garry and Mulvey, JJ., concur.
ORDERED that the judgment is affirmed.
ENTER:
Robert D. Mayberger
Clerk of the Court
1
To the extent that defendant argues that he was
improperly sentenced as a second violent felony offender, the
argument is unpreserved, inasmuch as he did not raise any
objection to the predicate felony statement at sentencing (see
People v McDowell, 56 AD3d 955, 955 [2008]; People v Robertson,
53 AD3d 791, 793 [2008], lv denied 11 NY3d 857 [2008]).