HOLMES, TERRY L., PEOPLE v

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

175
KA 14-02192
PRESENT: WHALEN, P.J., CENTRA, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

V MEMORANDUM AND ORDER

TERRY L. HOLMES, DEFENDANT-APPELLANT.

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (CAITLIN M. CONNELLY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

JOSEPH V. CARDONE, DISTRICT ATTORNEY, ALBION (KATHERINE BOGAN OF
COUNSEL), FOR RESPONDENT.

Appeal from a judgment of the Orleans County Court (James P.
Punch, J.), rendered September 22, 2014. The judgment convicted
defendant, upon his plea of guilty, of attempted criminal possession
of a controlled substance in the third degree.

It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of attempted criminal possession of a
controlled substance in the third degree (Penal Law §§ 110.00, 220.16
[1]). We agree with defendant that his waiver of the right to appeal
is not valid inasmuch as County Court conflated the right to appeal
with those rights automatically forfeited by the guilty plea (see
People v Sanborn, 107 AD3d 1457, 1458). Thus, the record fails to
establish that “defendant understood that the right to appeal is
separate and distinct from those rights automatically forfeited upon a
plea of guilty” (People v Lopez, 6 NY3d 248, 256; see People v
Bradshaw, 18 NY3d 257, 264). To the extent that defendant’s
contention that he was denied effective assistance of counsel at
sentencing survives his guilty plea, we conclude that it lacks merit
(see People v Smith, 144 AD3d 1547, 1548). “ ‘Defendant was sentenced
in accordance with the plea agreement, and any alleged deficiencies in
defense counsel’s representation at sentencing do not constitute
ineffective assistance’ ” (People v Gregg, 107 AD3d 1451, 1452; see
Smith, 144 AD3d at 1548; see generally People v Ford, 86 NY2d 397,
404). We conclude that the sentence is not unduly harsh or severe,
even considering that defendant’s accomplice received a lesser
sentence (see People v Shaffner, 96 AD3d 1689, 1690). We note,
however, that the certificate of conviction should be amended because
it incorrectly reflects that defendant was sentenced as a second
felony offender when he was actually sentenced as a second felony drug
 -2- 175
KA 14-02192

offender (see People v Smallwood, 145 AD3d 1447, ___; People v Easley,
124 AD3d 1284, 1285, lv denied 25 NY3d 1200).

Entered: February 3, 2017 Frances E. Cafarell
Clerk of the Court