Keeley A. Maloney, Albany, for appellant.
James E. Conboy, District Attorney, Fonda (William J. Mycek of counsel), for respondent.
Opinion
Appeal from a judgment of the County Court of Montgomery County (Catena, J.), rendered April 4, 2014, convicting defendant upon his plea of guilty of the crime of attempted burglary in the second degree.
Defendant entered the unlocked residence of a sleeping woman and removed certain items of personal property. A neighbor who witnessed the unlawful entry alerted police and defendant was apprehended. In satisfaction of a three-count indictment, he pleaded guilty to attempted burglary in the second degree. He was thereafter sentenced, in accordance with the plea agreement, to 3 ½ years in prison, to be followed by three years of postrelease supervision. He now appeals.
Defendant's sole contention is that the sentence is harsh and excessive. Initially, insofar as County Court failed to advise defendant that his right to appeal was separate and distinct from the other rights that he was forfeiting by pleading guilty (see People v. Zabawczuk, 128 A.D.3d 1267, 1268–1269, 11 N.Y.S.3d 692 2015, lv. denied 26 N.Y.3d 937, 17 N.Y.S.3d 100, 38 N.E.3d 846 2015; People v. Labaff, 127 A.D.3d 1471, 1471, 7 N.Y.S.3d 682 2015, lv. denied 26 N.Y.3d 931, 17 N.Y.S.3d 94, 38 N.E.3d 840 2015 ), his waiver of appeal is invalid and does not preclude him from challenging the severity of the sentence. Nevertheless, we find no reason to disturb the sentence imposed. Defendant agreed to the sentence as part of the plea agreement and it was significantly less than he could have received if convicted after trial. In addition, his criminal record reveals that this is his fourth criminal conviction in as many years. Consequently, we find no extraordinary circumstances nor any abuse of discretion warranting a reduction of the sentence in the interest of justice (see People v. Whitted, 117 A.D.3d 1179, 1182–1183, 985 N.Y.S.2d 319 2014, lv. denied 23 N.Y.3d 1026, 992 N.Y.S.2d 809, 16 N.E.3d 1289 2014; People v. Miller, 70 A.D.3d 1120, 1121, 896 N.Y.S.2d 183 2010, lv. denied 14 N.Y.3d 890, 903 N.Y.S.2d 778, 929 N.E.2d 1013 2010 ).
ORDERED that the judgment is affirmed.
PETERS, P.J., McCARTHY, EGAN JR. and DEVINE, JJ., concur.