State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: March 26, 2015 106135
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THE PEOPLE OF THE STATE OF
NEW YORK,
Respondent,
v MEMORANDUM AND ORDER
DAVID A. ASHLAW,
Appellant.
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Calendar Date: February 20, 2015
Before: Lahtinen, J.P., Garry, Rose and Devine, JJ.
__________
Richard V. Manning, Parishville, for appellant.
Alexander Lesyk, Special Prosecutor, Norwood, for
respondent.
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Garry, J.
Appeal from a judgment of the County Court of St. Lawrence
County (Richards, J.), rendered July 26, 2013, convicting
defendant upon his plea of guilty of the crime of burglary in the
third degree.
Pursuant to a combined plea agreement, defendant entered a
guilty plea to burglary in the third degree in satisfaction of a
four-count indictment. Defendant also waived indictment and
pleaded guilty to the reduced charge of attempted burglary in the
second degree as charged in a superior court information related
to another incident, satisfying other outstanding charges (People
v Ashlaw, ___ AD3d ___ [decided herewith]). The agreement
included an appeal waiver, among other terms. In exchange,
County Court adjourned sentencing and placed defendant on interim
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probation for one year in order to permit him to complete
substance abuse treatment (see CPL 390.30 [6]) and avoid jail
time. Defendant was required to comply with all conditions of
his probation and was warned that, if he violated them, he could
be sentenced to consecutive seven-year prison terms on each
count, with three years of postrelease supervision. Defendant
was specifically advised that he would be required to submit to
random drug tests, obtain negative test results and comply with
all recommended substance abuse treatment.
Sentencing was repeatedly adjourned to permit defendant to
complete inpatient treatment. Although he successfully completed
the first two programs, he was unsuccessfully discharged from the
final program and, during that time, tested positive for drugs at
least four times and admitted to attempting to use substitute
urine for one court-ordered drug test. County Court thereafter
concluded that defendant had failed to comply with the conditions
of interim probation and sentenced him to a prison term of 20
months to five years on the burglary in the third degree
conviction.1 Defendant appeals.
Initially, although an appeal waiver was recited as a term
of the plea agreement, the record does not establish that
defendant's appeal waiver was knowing, voluntary and intelligent
(see People v Lopez, 6 NY3d 248, 256 [2006]). Although County
Court elicited an oral appeal waiver from defendant, the court
did not explain its meaning or ascertain whether he had discussed
the appellate process with counsel. Further, although defendant
signed a written appeal waiver in court, the court did not
confirm that he had read it, was aware of its contents or had "a
full appreciation of the consequences" of such waiver (People v
Seaberg, 74 NY2d 1, 11 [1989]; see People v Elmer, 19 NY3d 501,
510 [2012]; People v Bradshaw, 18 NY3d 257, 264-267 [2011]).
Thus, his challenge to the sentence as harsh and excessive is not
precluded (see People v Lopez, 6 NY3d at 257).
1
Defendant also received a concurrent sentence of four
years with three years of postrelease supervision on the
attempted burglary in the second degree conviction (People v
Ashlaw, supra).
-3- 106135
We find, however, that County Court properly considered
defendant's violations of interim probation in determining an
appropriate sentence (see People v O'Brien, 111 AD3d 1028, 1029
[2013]). Given the repeated opportunities and leniency afforded
him, we find no abuse of discretion or extraordinary
circumstances warranting a reduction of the sentence in the
interest of justice (see People v Izzo, 108 AD3d 944, 945 [2013],
lv denied 21 NY3d 1074 [2013]). His claim that interim probation
was improperly terminated was not raised prior to sentencing or
in a motion to withdraw his plea and, as such, it is unpreserved
(see People v Waite, 119 AD3d 1086, 1087 [2014]). Moreover,
defendant was given repeated opportunities to be heard and did
not dispute the violations (see People v Kocher, 116 AD3d 1301,
1302 [2014]), and the court adequately advised him of the terms
of his guilty plea and conditions of interim probation, including
the potential prison sentence if he failed to abide by them (see
People v Waite, 119 AD3d at 1087). The record does not support
his contention that the court promised that he would be admitted
to any particular treatment program.
Lahtinen, J.P., Rose and Devine, JJ., concur.
ORDERED that the judgment is affirmed.
ENTER:
Robert D. Mayberger
Clerk of the Court