State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: November 6, 2014 105532
105533
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THE PEOPLE OF THE STATE OF
NEW YORK,
Respondent,
v MEMORANDUM AND ORDER
DAVID P. TERRY,
Appellant.
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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.
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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
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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