PeoplevTerry

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 6, 2014
• Docket: 105532/105533
• Status: Published

Opinion

State of New York Supreme Court, Appellate Division Third Judicial Department Decided and Entered: November 6, 2014 105532 105533 ________________________________

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v MEMORANDUM AND ORDER

DAVID P. TERRY, Appellant. ________________________________

Calendar Date: October 7, 2014

Before: Lahtinen, J.P., Stein, McCarthy, Rose and Clark, JJ.

__________

Dean C. Schneller, Plattsburgh, for appellant.

Andrew J. Wylie, District Attorney, Plattsburgh (Nicholas J. Evanovich of counsel), for respondent.

Clark, J.

Appeal from a judgment of the County Court of Clinton County (McGill, J.), rendered November 8, 2012, convicting defendant upon his plea of guilty of the crimes of forgery in the second degree (six counts), criminal possession of a forged instrument in the second degree (six counts), grand larceny in the third degree (three counts) and grand larceny in the fourth degree (three counts).

In satisfaction of two indictments charging him with numerous crimes, defendant pleaded guilty to forgery in the second degree (six counts), criminal possession of a forged instrument in the second degree (six counts), grand larceny in the third degree (three counts) and grand larceny in the fourth -2- 105532 105533

degree (three counts) and agreed to waive his right to appeal. He was thereafter sentenced, as a second felony offender, to an aggregate prison term of 12 to 24 years. Defendant now appeals.

We affirm. Initially, upon reviewing the record, including the plea colloquy and written waiver of appeal, we find that defendant's waiver of the right to appeal was invalid. He was not advised that the right to appeal is separate and distinct from the other rights that he was forfeiting by his guilty plea (see People v Lopez, 6 NY3d 248, 256 [2006]; People v Patterson, 119 AD3d 1157, 1158 [2014]; People v Bressard, 112 AD3d 988, 988 [2013], lv denied 22 NY3d 1137 [2014]). Defendant's claim that he was denied the effective assistance of counsel is unpreserved for our review as the record does not reflect that he made an appropriate postallocution motion (see People v Vandemark, 117 AD3d 1339, 1340 [2014], lv denied ___ NY3d ___ [Sept. 30, 2014]; People v Trombley, 115 AD3d 1114, 1114 [2014], lv denied 23 NY3d 1068 [2014]). Further, while defendant's contention that his sentence is harsh and excessive is properly before us, we find no extraordinary circumstances or abuse of discretion warranting a reduction of the sentence in the interest of justice (see People v Miller, 113 AD3d 935, 936 [2014], lv denied 22 NY3d 1201 [2014]; People v Butler, 111 AD3d 1024, 1025 [2013], lv denied 23 NY3d 961 [2014]).

Lahtinen, J.P., Stein, McCarthy and Rose, JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger Clerk of the Court