State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: December 22, 2016 106469
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THE PEOPLE OF THE STATE OF
NEW YORK,
Respondent,
v MEMORANDUM AND ORDER
BENJAMIN A. SLAMP,
Appellant.
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Calendar Date: November 17, 2016
Before: Peters, P.J., Garry, Devine, Mulvey and Aarons, JJ.
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Norbert A. Higgins, Binghamton, for appellant.
Mark D. Suben, District Attorney, Cortland (Zela E.
Brotherton of counsel), for respondent.
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Mulvey, J.
Appeal from a judgment of the County Court of Cortland
County (Ames, J.), rendered August 13, 2013, convicting defendant
upon his plea of guilty of the crimes of unlawful manufacture of
methamphetamine in the third degree and criminal sale of a
controlled substance in the fifth degree.
Defendant pleaded guilty to unlawful manufacture of
methamphetamine in the third degree and criminal sale of a
controlled substance in the fifth degree in full satisfaction of
a six-count indictment, and his plea included the waiver of the
right to appeal. Pursuant to the plea agreement, defendant was
to be sentenced to an aggregate prison term of four years, to be
followed by two years of postrelease supervision. Sentencing was
adjourned and defendant was released to get his affairs in order,
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with the requirement that he was to report to jail one week
later. Defendant failed to report to jail and a warrant was
issued for his arrest. Defendant was subsequently arrested on a
new charge of criminal contempt in the second degree. Defendant
thereafter agreed to be sentenced to an aggregate prison term of
five years, with two years of postrelease supervision, on his
plea of guilty to unlawful manufacture of methamphetamine in the
third degree and criminal sale of a controlled substance in the
fifth degree, with the understanding that the enhanced sentence
would satisfy the criminal contempt charge, as well as any other
pending charges. The agreement also included a waiver of the
right to appeal. County Court imposed the agreed-upon sentence
and defendant appeals.
We affirm. Initially, we agree with defendant that his
waiver of the right to appeal was invalid, inasmuch as the record
does not demonstrate that defendant understood that the appeal
waiver was separate and distinct from the rights automatically
forfeited by a guilty plea (see People v Bradshaw, 18 NY3d 257,
263-264 [2011]; People v Lopez 6 NY3d 248, 256 [2006]). Although
defendant's sole remaining claim – that his sentence was harsh
and excessive – is properly before us, we find it unpersuasive.
Defendant was advised at the time that he entered his plea of the
consequences of being arrested while on release, and he waived
any challenges regarding the enhanced sentence in exchange for
the promise that his plea would satisfy both the new charge and
any pending charges (see People v Outley, 80 NY2d 702, 713
[1993]; People v Lord, 128 AD3d 1277, 1278-1279 [2015]). In
light of the foregoing, as well as defendant's extensive criminal
history, we find no abuse of discretion or extraordinary
circumstances warranting a reduction of the sentence (see People
v Kerwin, 117 AD3d 1097, 1098 [2014]; People v Williams, 101 AD3d
1174, 1174-1175 [2012]).
Peters, P.J., Garry, Devine and Aarons, JJ., concur.
-3- 106469
ORDERED that the judgment is affirmed.
ENTER:
Robert D. Mayberger
Clerk of the Court