State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: March 17, 2016 106878
________________________________
THE PEOPLE OF THE STATE OF
NEW YORK,
Respondent,
v MEMORANDUM AND ORDER
KEON BEVERLY,
Appellant.
________________________________
Calendar Date: February 18, 2016
Before: Peters, P.J., Garry, Rose and Devine, JJ.
__________
Aaron A. Louridas, Delmar, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H.
Willis of counsel), for respondent.
__________
Rose, J.
Appeal from a judgment of the County Court of Schenectady
County (Drago, J.), rendered January 13, 2011, convicting
defendant upon his plea of guilty of the crimes of assault in the
second degree and perjury in the first degree.
In satisfaction of a 12-count indictment, defendant pleaded
guilty to assault in the second degree and perjury in the first
degree. He also waived his right to appeal, both orally and in
writing. In accordance with the terms of the plea agreement,
defendant was sentenced as a second felony offender to four years
in prison to be followed by five years of postrelease supervision
on the assault conviction, and 3 to 6 years in prison on the
perjury conviction, said sentences to run consecutively.
Defendant now appeals.
-2- 106878
Defendant's primary contention is that he was denied the
effective assistance of counsel and that this rendered his guilty
plea involuntary. Although this type of claim is not foreclosed
by a valid waiver of the right to appeal, it has not been
preserved for our review as there is no indication in the record
that defendant made an appropriate postallocution motion (see
People v Broomfield, 128 AD3d 1271, 1271-1272 [2015], lv denied
26 NY3d 1086 [2015]; People v Brown, 128 AD3d 1273, 1274 [2015]).
Defendant next challenges the severity of the sentence – a
challenge that is precluded by a valid waiver of the right to
appeal. However, we find that the waiver here was invalid
inasmuch as it does not appear that defendant was advised that
the right to appeal was separate and distinct from the other
rights that he was forfeiting by pleading guilty (see People v
Lopez, 6 NY3d 248, 256 [2006]; People v Pope, 129 AD3d 1389,
13989-1390 [2015]; People v Burgette, 118 AD3d 1034, 1035 [2014],
lv denied 24 NY3d 1118 [2015]). Turning to the merits, we note
that defendant has a lengthy criminal record and agreed to the
sentence as part of a favorable plea agreement that exposed him
to less time in prison than if he was convicted after trial.
Accordingly, we find no abuse of discretion nor any extraordinary
circumstances warranting a reduction of the sentence in the
interest of justice (see People v Miller, 66 AD3d 1242, 1243-1244
[2009], lv denied 14 NY3d 772 [2010]; People v Humphrey, 13 AD3d
815, 816 [2004], lv denied 4 NY3d 799 [2005]).
Peters, P.J., Garry and Devine, JJ., concur.
-3- 106878
ORDERED that the judgment is affirmed.
ENTER:
Robert D. Mayberger
Clerk of the Court