State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: October 29, 2015 105911
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THE PEOPLE OF THE STATE OF
NEW YORK,
Respondent,
v MEMORANDUM AND ORDER
ROBERT WILLIAMS,
Appellant.
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Calendar Date: September 10, 2015
Before: Lahtinen, J.P., Garry, Lynch and Devine, JJ.
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Neal D. Futerfas, White Plains, for appellant.
James R. Farrell, District Attorney, Monticello (Meagan K.
Galligan of counsel), for respondent.
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Garry, J.
Appeal from a judgment of the County Court of Sullivan
County (LaBuda, J.), rendered June 5, 2012, convicting defendant
upon his plea of guilty of the crime of criminal possession of a
controlled substance in the third degree.
In satisfaction of a multicount indictment stemming from an
incident in which he was discovered operating a motor vehicle
containing a quantity of heroin, defendant pleaded guilty to
criminal possession of a controlled substance in the third
degree. He was thereafter sentenced in accord with his plea
agreement to a prison term of seven years to be followed by two
years of postrelease supervision. Defendant appeals.
Initially, we find defendant's waiver of his right to
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appeal invalid, as County Court "did not adequately convey that
the right to appeal is separate and distinct from those rights
automatically forfeited upon a plea of guilty but, rather,
improperly lumped those rights together" (People v Vences, 125
AD3d 1050, 1051 [2015] [internal quotation marks and citation
omitted]; see People v Blackmon, 122 AD3d 1071, 1072 [2014], lv
denied 24 NY3d 1218 [2015]). Further, although defendant
executed a detailed written waiver, the court's colloquy was not
adequate to ensure that defendant understood the content or
consequences of the appeal waiver (see People v Bradshaw, 18 NY3d
257, 264-265 [2011]; People v Mones, 130 AD3d 1244, 1245 [2015]).
Turning to the merits, we reject defendant's contention
that the traffic stop of his vehicle was without legal
justification. It is fundamental that "probable cause exists for
a traffic stop if an officer observes a defendant committing a
traffic violation" (People v Portelli, 116 AD3d 1163, 1164
[2014]). The arresting officer testified at the suppression
hearing that defendant's vehicle passed by his location and he
observed that the vehicle did not have an illuminated license
plate (see Vehicle and Traffic Law § 375 [2] [a] [4]). The
officer then followed the vehicle to confirm his initial
observation and, upon catching up to it, further observed that
the vehicle had excessively tinted windows (see Vehicle and
Traffic Law § 375 [12-a] [b] [2]). The officer then initiated
the traffic stop. County Court credited this testimony, and "we
accord great weight to the suppression court's factual findings
that are supported by the record" (People v Morris, 105 AD3d
1075, 1077 [2013], lv denied 22 NY3d 1042 [2013]). Here, as the
uncontroverted testimony of the arresting officer confirmed that
the stop was initiated only after the officer had observed two
violations, we find no error in County Court's determination that
the stop of defendant's vehicle was justified (see People v
Thompson, 106 AD3d 1134, 1135 [2013]; People v Hawkins, 45 AD3d
989, 990-991 [2007], lv denied 9 NY3d 1034 [2008]; People v
Brooks, 23 AD3d 847, 849 [2005], lv denied 6 NY3d 810 [2006]).
Finally, we disagree with defendant's assertion that the
sentence imposed by County Court was harsh and excessive.
Defendant was sentenced to a prison term of seven years with two
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years of postrelease supervision despite his plea agreement
allowing for a prison term of eight years. Moreover, defendant
possesses a lengthy criminal history that spans five decades and
includes multiple periods of incarceration. Accordingly, we find
no abuse of discretion or extraordinary circumstances warranting
a reduction of the sentence imposed (see People v Edwards, 96
AD3d 1089, 1092 [2012], lv denied 19 NY3d 1102 [2012]; People v
Kelly, 71 AD3d 1292, 1292-1293 [2010]). Defendant's remaining
contentions are unpreserved.
Lahtinen, J.P., Lynch and Devine, JJ., concur.
ORDERED that the judgment is affirmed.
ENTER:
Robert D. Mayberger
Clerk of the Court